HomeMy WebLinkAbout4. PLN-19-00118 Zone Text AmendmentSTAFF REPORT
PLANNING DIVISION
DATE: AUGUST 21, 2019
TO: PLANNING COMMISSION
SUBMITTED BY: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOPMENT
PREPARED BY: CRYSTAL LANDAVAZO, CITY PLANNER
SUBJECT: PLN-19-00118 (MUNICIPAL CODE AMENDMENT) – A REQUEST TO
AMEND VARIOUS SECTIONS OF ARTICLE VI AND ARTICLE IX OF
THE DOWNEY MUNICIPAL CODE TO ADOPT REGULATIONS
RELATED TO MASSAGE ESTABLISHMENTS
LOCATION: CITYWIDE
ZONING: VARIOUS COMMERCIAL ZONES
REPORT SUMMARY
The City Council adopted Interim Urgency Ordinances to establish a temporary moratorium on
new and expanding massage therapy establishments within the City. Staff was directed to
assess the existing Municipal Code and return with appropriate amendments needed to regulate
massage uses. The moratorium and its extensions allowed staff the time needed to review
massage ordinances utilized throughout other jurisdictions and research available data sources
for massage practitioners. Based on the analysis contained in this report, staff is recommending
the Planning Commission adopt the following titled resolution:
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
DOWNEY RECOMMENDING THAT THE PLANNING COMMISSION APPROVE
A ZONE TEXT AMENDMENT (PLN-19-00118), THEREBY AMENDING
VARIOUS SECTIONS OF ARTICLE VI AND ARTICLE IX OF THE MUNICIPAL
CODE REGARDING REGULATIONS FOR THE ESTABLISHMENT AND
OPERATION OF MASSAGE ESTABLISHMENTS.
BACKGROUND
In 2008, the State of California adopted SB 731 (Chapter 384, Statutes of 2008), also known as
the Massage Therapy Act. This Act established a private, non-profit organization called the
California Massage Therapy Council (CAMTC) and created a voluntary certification program for
massage therapists. Upon certification of a therapist by CAMTC, local jurisdictions are no
longer allowed to require additional educational requirements, background checks, or a
separate permit (i.e. Police Permit). Since its original adoption, the Massage Therapy Act has
been extended and modified in 2011, 2014, 2016, and 2019.
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Three massage establishments were located within the City of Downey prior to the
implementation of SB 731 (January 1, 2009); the number increased to eleven by October 2018.
Additionally, there was concern over the unknown amount of chiropractors, acupuncturists, day
spas, beauty salons, and similar businesses that offered massage services as part of their
business operations. Massage therapy establishments have been associated with prostitution
and human trafficking operations so there was concern that the increase in massage
establishments could have permitted businesses that conducted illicit activities. A 2018 Police
investigation confirmed some of this activity was occurring within the City and resulted in
arrests.
Because of the severity of the potential crimes that may occur at massage establishments and
their immediate effects on the public health, welfare, and safety, the City Council adopted
Interim Urgency Ordinance 18-1399 on October 9, 2018 to establish a temporary moratorium on
new and expanding massage therapy establishments for a period of 45 days. On November 13,
2018, the City Council subsequently adopted an extension of the Interim Urgency through
Ordinance 18-1400 for a period of 10 months and 15 days and directed staff to assess the
existing Municipal Code and return with appropriate amendments needed to regulate massage
uses.
On August 8, 2019, notice of the pending public hearing was published in the Downey Patriot as
a 1/8 th page ad in accordance with the requirements of the Downey Municipal Code.
DISCUSSION
The existing Municipal Code regulations related to massage uses require all massage
establishments operators, persons who own the business, and all massage practitioners, persons
who perform massage services on customers, to apply for a permit with the Police Department.
The permit application submitted to the Police Department is approved only after the applicant
has passed a background check, as stated in Chapter 5 of Article VI of the existing Municipal
Code. Additionally, Section 9314.04 of the Municipal Code requires a Conditional Use Permit to
be presented to the Planning Commission at a public hearing before a determination is made to
approve or deny a new massage establishment.
Staff reviewed the Massage Therapy Act and the authority that local jurisdictions are allowed to
exercise when regulating massage establishments and massage practitioners. In addition to
reviewing state legislation, staff also surveyed the regulations in place for surrounding
jurisdictions. Staff reviewed massage ordinances in place for ten cities of similar size and
demographics, and found the Cities of Cerritos, Brea, Fullerton, and Orange had regulations that
could serve as a guide in establishing new standards. Typically, these communities accepted the
state’s reviewing organization as the criteria for all massage practitioners. These communities
require that any person who performs massage must hold a CAMTC certification. Massage
establishments are required to meet specific facility and operational standards such as lighting
and ventilation requirements, clean linens, and maintenance of records for all services performed.
Additionally, these jurisdictions required regular renewals of background checks for massage
establishment operators to ensure they remain in compliance and have not received any
convictions since commencing operation within the City.
Staff is proposing to incorporate many of the regulations utilized in surrounding jurisdictions
because they will provide an opportunity to set clear operational standards and provide an avenue
for continued observation to ensure that the establishments operate as originally approved. The
proposed amendments will retain the existing background check requirements for operators of
massage establishments, who are not CAMTC certified, and will additionally require that any
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partner with a 5% or more interest in the business, be required to submit an application for a
background check. Additionally, the amendments will incorporate requirements that these
operators submit a renewal application for a new background check every two years. The
proposed amendments also introduce a revocation procedure that will allow the City to revoke an
approval if the operator was found to no longer meet approved criteria. In compliance with the
Massage Therapy Act, massage establishment operators who hold a CAMTC are not required to
submit an application for a background check or a renewal application because they have
completed a background check conducted by CAMTC as part of their certification.
Facility and operational requirements are also proposed as part of this amendment to establish
standard business operations for all massage establishments within the City. The proposed
amendments establish a definition for massage practitioner that identifies a person who holds a
CAMTC certification and performs massage. This definition will establish that only persons who
comply with state certification requirements are allowed to perform massage within the City. All
massage establishments will be required to maintain a record of all services performed on site for
a period of two years, all employees must be dressed in clean and opaque clothing from neck to
knee, must meet minimum lighting standards, must provide a list of all practitioners operating
within the establishment, and must have clean linens at all times. All massage establishment
operators will be required to submit a business plan that identifies the establishment will meet all
facility and operational standards. An operator who does not have a CAMTC certification will have
to obtain a background check approval from the Police Department before requesting approval for
a business license. A person who holds a CAMTC certification will need to provide a business
plan to the City Planner showing compliance with Municipal Code prior to obtaining approval for
issuance of a business license.
As described above, new key regulatory features of the proposed ordinance are as follows:
1.All persons who perform massage services would be required to have a state massage
certification. Massage establishments would be prohibited from allowing non-certified
persons from performing massage services.
2.Any person who operates a massage establishment or owns 5 percent or more of a
massage establishment and who is not a state certified massage professional would
have to pass a detailed background check. Background check approval could be denied
or revoked if any of the required findings for approval could not be made or if the
applicant makes any material misrepresentation or omission during the process.
3.Each massage establishment would have to comply with the numerous operational
requirements. These include health and safety regulations that were already currently
found in the Code, as well as new requirements intended to ensure that only state-
certified massage professionals are providing massage services. Some such regulations
include lighting standards, apparel standards, maintenance of records which must be
made available for City staff, and
4.The amendment would also amend Section 9402.04 of the Municipal Code to update the
definition “massage practitioner” and eliminate the definition of “Professional
massage/somatic association” to introduce a definition for “California Massage Therapy
Council.” These amendments will identify that only persons who meet state certification
requirements may operate within the City.
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The attached resolution identifies all proposed deletions of the existing code text
using strikethroughs and all proposed new language is identified with underlines and red font
color.
ENVIRONMENTAL ANALYSIS
The requested Municipal Code Amendment is exempt from review under the California
Environmental Quality Act, Public Resources Code § 21000 et seq. (“CEQA”) and the State
CEQA Guidelines, 14 C.C.R. § 15000 et seq. because it would establish rules and procedures
to permit operation of facilities already permitted to operate under existing law and make
revisions and clarifications to existing regulations and procedures related thereto. The
amendment would not have the potential to cause significant effects on the environment. It is
therefore categorically exempt from further CEQA review under CEQA Guidelines Sections
15301, 15305, and 15308.
FINDINGS
Pursuant to Municipal Code Section 9832.06, there are two (2) findings that must be adopted
prior to approving the Municipal Code Amendments. The findings are as follows:
A. The requested amendment is necessary and desirable for the development of the
community and is in the interests or furtherance of the public health, safety, and
general welfare.
The City adopted an Interim Urgency Ordinance on October 9, 2018 and adopted an
Extension of the Interim Urgency Ordinance on November 13, 2018 because there was
concern that the potential impacts of massage therapy establishments threatened the
preservation of the public peace, health, safety and welfare of the community. The
proposed Municipal Code Amendments introduce regulations that establish approval
procedures, operational requirements, and sets forth inspection and revocation authority
by City Officials to ensure massage establishments operate appropriately. The proposed
regulations, operational standards, inspection, and review and revocation procedures
are incorporated to ensure that potential effects in public health, safety, and general
welfare will be mitigated as much as possible.
B. The proposed amendment is in general conformance with the General Plan.
The proposed Municipal Code Amendments set forth review, approval, and operational
standards for a sensitive commercial use within the City. General Plan Program 1.3.2.2
– Adjust the codes, policies, and regulations in response to changes in land use trends.
The Municipal Code Amendment addresses a community that arose after several
outside factors occurred. The State of California adopted SB 731(Chapter 384, Statutes
of 2008) which removed some local authority for regulating individual technicians who
were certified by the California Massage Therapy Council. Many cities began to see an
increase in massage establishment uses after SB 731 and its subsequent legislation.
The proposed Municipal Code Amendments are consistent with General Plan Policy
1.3.2.2 in that staff has evaluated the impacts of newer legislation and proposes to
amend its regulations so that the community is protected while also maintaining
compliant with state law. The proposed amendments will adjust current regulations to
provide more protections for the community and provide guidance for genuine massage
establishments to operate within the City.
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CORRESPONDENCE
As of the date that this report was printed, staff has not received correspondence regarding this
application.
CONCLUSION
Based on the analysis contained within this report, staff is concluding that the proposed
Municipal Code Amendment (PLN-19-00118) will serve to protect the health, safety, and welfare
of the community by establishing operation standards for massage establishments.
Furthermore, staff is concluding that both findings required to approve the amendment can be
made in a positive manner. As such, staff is recommending that the Planning Commission
recommend to the City Council that they approve the Municipal Code Amendment (PLN-19-
00118), thereby amending the Municipal Code with regards to massage uses.
EXHIBITS
A. Draft Resolution
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RESOLUTION NO.
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
DOWNEY RECOMMENDING THAT THE PLANNING COMMISSION APPROVE
A MUNICIPAL CODE AMENDMENT (PLN-19-00118), THEREBY AMENDING
VARIOUS SECTIONS OF ARTICLE VI AND ARTICLE IX OF THE MUNICIPAL
CODE REGARDING REGULATIONS FOR THE ESTABLISHMENT AND
OPERATION OF MASSAGE ESTABLISHMENTS.
THE PLANNING COMMISSION OF THE CITY OF DOWNEY DOES RESOLVE AS FOLLOWS:
SECTION 1. The Planning Commission of the City of Downey does hereby find,
determine and declare that:
A. On October 9, 2018, pursuant Section 65858 of the California Government Code, the
City Council of the City of Downey ("City Council") adopted Ordinance No. 18-1399,
an interim urgency ordinance, which temporarily prohibited establishing new or
expanding existing massage therapy establishments for a period of 45 days; and,
B. On November 13, 2018, pursuant Section 65858 of the California Government Code,
the City Council of the City of Downey ("City Council") adopted Ordinance No. 18-
1400, an interim urgency ordinance, extending the temporary prohibition on
establishing new or expanding existing massage therapy establishments for a period
of 10 months and 15 days; and,
C. On August 8, 2019, notice of the pending municipal code amendment was published
in the Downey Patriot as a 1/8 th page ad in accordance with the requirements of the
Downey Municipal Code; and,
D. The Planning Commission held a duly noticed public hearing on August 21, 2019,
and after fully considering all oral and written testimony and facts and opinions
offered at the aforesaid public hearing, adopted this resolution.
SECTION 2. The Planning Commission further finds, determines and declares the
requested Municipal Code Amendment is exempt from review under the California
Environmental Quality Act, Public Resources Code § 21000 et seq. (“CEQA”) and the State
CEQA Guidelines, 14 C.C.R. § 15000 et seq. because it would establish rules and procedures
to permit operation of facilities already permitted to operate under existing law and make
revisions and clarifications to existing regulations and procedures related thereto. The
amendment would not have the potential to cause significant effects on the environment. It is
therefore categorically exempt from further CEQA review under CEQA Guidelines Sections
15301, 15305, and 15308.
SECTION 3. Having considered all of the oral and written evidence presented to it at
said public hearing, the Planning Commission further finds, determines and declares that:
A. The requested amendment is necessary and desirable for the development of the
community and is in the interests or furtherance of the public health, safety, and
general welfare. The City adopted an Interim Urgency Ordinance on October 9, 2018
and adopted an Extension of the Interim Urgency Ordinance on November 13, 2018
because there was concern that the potential impacts of massage therapy
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Resolution No.
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establishments threatened the preservation of the public peace, health, safety and
welfare of the community. The proposed Municipal Code Amendments introduce
regulations that establish approval procedures, operational requirements, and sets
forth inspection and revocation authority by City Officials to ensure massage
establishments operate appropriately. The proposed regulations, operational
standards, inspection, and review and revocation procedures are incorporated to
ensure that potential effects in public health, safety, and general welfare will be
mitigated as much as possible.
B. The proposed amendment is in general conformance with the General Plan. The
proposed Municipal Code Amendments set forth review, approval, and operational
standards for a sensitive commercial use within the City. General Plan Program
1.3.2.2 – Adjust the codes, policies, and regulations in response to changes in land
use trends. The Municipal Code Amendment addresses a community that arose after
several outside factors occurred. The State of California adopted SB 731(Chapter
384, Statutes of 2008) which removed some local authority for regulating individual
technicians who were certified by the California Massage Therapy Council. Many
cities began to see an increase in massage establishment uses after SB 731 and its
subsequent legislation. The proposed Municipal Code Amendments are consistent
with General Plan Policy 1.3.2.2 in that staff has evaluated the impacts of newer
legislation and proposes to amend its regulations so that the community is protected
while also maintaining compliant with state law. The proposed amendments will
adjust current regulations to provide more protections for the community and provide
guidance for genuine massage establishments to operate within the City.
SECTION 4. Based upon the findings set forth in Sections 1 through 3 of this
Resolution, the Planning Commission of the City of Downey hereby recommends that the City
Council revise the following regulations of Sections 6553 through 6556 of Article VI of the
Downey Municipal Code as provided below. New text is identified with an underline and red font
color and deleted text is shown with a strikethrough; the amended regulations are proposed to
read as follows:
SECTION 6553. DEFINITIONS.
For the purposes of this part, the words and phrases shall have the definitions listed below:
(a) “Chief of Police” shall mean City of Downey Chief of Police or his or her designee.
(b) “Customer” shall mean any person on the premises of a massage establishment during
operating hours who is not an owner, employee, independent contractor, or vendor of the
massage establishment.
(c) “Employee” shall mean any person who is employed by a massage establishment.
(d) “Health Officer” shall mean the Los Angeles County Health Department officer
responsible for inspecting massage establishments in Downey, or his or her designee.
(a)(e) “Massage” shall have the same definition as “massage services,” as provided in
Downey Municipal Code Section 9402.04(I).
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(b)(f) “Massage establishment” shall have the same definition as provided in Downey
Municipal Code Section 9402.04(L).
(c)(g) “Massage practitioner” shall have the same definition as provided in Downey Municipal
Code Section 9402.04(J).
(d)(h) “Massage services” shall have the same definition as provided in Downey Municipal
Code Section 9402.04(I).
(e)(i) “Professional massage/somatic association””California Massage Therapy Council” shall
have the same definition as provided in Downey Municipal Code Section 9402.04(K).
(f) “School providing massage instruction” shall mean an educational institution which meets
at least the following criteria:
(1) Is accredited by a recognized state or national accrediting body.
(2) Requires at least five hundred (500) hours of classroom instruction in the study of
anatomy, physiology, hygiene, sanitation, massage theory and practice, and ethics of massage
practice.
(Added by Ord. 419, adopted 5-8-72; amended by Ord. 1049, adopted 4-28-98; amended by
Ord. 1237, adopted 10-28-08)
SECTION 6553.1. PERMITS REQUIRED.
No person shall operate any massage establishment, nor perform massage services or
otherwise act as a massage practitioner, within the City without first obtaining a permit for those
activities from the Chief of Police or his or her designee. Notwithstanding the provisions of this
Chapter, all massage establishment operators, and massage practitioners who work as
independent contractors, must obtain a business license from the City of Downey before
commencing any commercial activity within the City. (Added by Ord. 419, adopted 5-8-72;
amended by Ord. 1049, adopted 4-28-98)
SECTION 6553.2. PERMITS REQUIRED: EXEMPTIONS.
The provisions of this chapter shall not apply to the following persons when engaged within the
scope of their respective duties.
(a) The provisions of this part chapter shall not apply to cosmetologists, and barbers, or who
are duly licensed by the State of California. This provision shall apply solely to the messaging of
the neck, face, scalp, and hair of the customer or client.
(a)(b) The provisions of this Chapter shall not apply to persons licensed to practice any healing
art under the provisions of Division 2 (commencing with Section 500) of the Business and
Professions Code, when engaging in such practice within the scope of his or her license. The
requirement for a massage establishment permit shall not apply to massage services which are
accessory uses (as defined in Downey Municipal Code Section 9122) to the practice of
cosmetologists, barbers, or persons licensed to practice any healing art under the provisions of
Division 2 (commencing with Section 500) of the Business and Professions Code, if the
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accessory is contained within the same structure as the primary use, and meets either of the
following conditions:
(a)(1) The accessory use is by no more than one full-time permitted massage practitioner
providing massage services to no more than one person simultaneously; or
(b)(2) The accessory use is by three or fewer part-time permitted massage practitioners
sharing one work station, and that work station is not used simultaneously by more than one
massage practitioner to provide massage services simultaneously by more than one person.
(3)For the purposes of this section, full-time massage practitioners are those who work thirty
(30) or more hours per week, and part-time massage practitioners are those who work less than
thirty (30) hours per week. (Added by Ord. 419, adopted 5-8-72; amended by Ord. 1049,
adopted 4-28-98; amended by Ord. 1237, adopted 10-28-08)
(c) The provisions of this chapter, as it relates to the requirement for obtaining a permit to
operate a massage establishment, shall not apply to an operator who provides evidence of valid
certification by the California Massage Therapy Council.
SECTION 6553.3. CERTIFICATION REQUIRED
(a) It is unlawful for any person other than a state certified massage professional to engage
in the commercial practice of massage.
(b) It is unlawful for any person to own, operate, or maintain a massage establishment
unless each person engaging in massage at the establishment is a state certified massage
professional.
(c) It is unlawful for any owner or employee in charge or control of a massage establishment
to employ or permit a person who is not currently a state certified massage professional to
engage in the commercial practice of massage on the premises on the massage establishment.
6553.5 PERMITTED LOCATIONS FOR MASSAGE
(a) It is unlawful to engage in the commercial practice of massage at any location other than
a massage establishment established and operated in accordance with the requirements of
federal, state, and local law, including but not limited to this Code.
(b) No massage establishment shall be established, expanded, or altered in a manner that
requires a building permit without first obtaining a written determination by the Community
Development Department that the establishment complies with the requirements of this Code.
Upon request for a business license, the owner or operator shall submit a site plan to the
Community Development Department depicting how the establishment will comply with this
Code.
SECTION 6554. PERMITS: APPLICATIONS.
Applications for permits to operate a massage establishment to perform massage services, or
otherwise act as a massage practitioner, shall be submitted to and on a form provided by the
Chief of Police or his or her designee. The application must be typewritten or legibly printed by
hand, and must be accompanied by a filing and processing fee in the amount set by resolution
of the City Council. Illegible information will be treated as incomplete, and may therefore serve
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as grounds for denial of the application. The application must be submitted fully completed by all
persons required to pass a background check, and must include at a minimum the following
information:
(a) An accurate statement of the business, occupation, or employment of the applicant for the
five (5) years immediately preceding the date the application is submitted; and
(b) A certified copy of a graduation certificate, diploma, transcript, or other similar proof of
completion of minimum education requirements, from a school providing massage instruction;
and
(c) Proof of current membership in a professional massage/somatic association; and
(d)(c) A list of any conviction(s) of the applicant in the five (5) years immediately preceding the
date of the application for violation of any of the following sections of the California Penal Code:
266i, 315, 316, 318, or 647 (b); and
(e)(d) A list of any conviction(s) of the applicant in the five (5) years immediately preceding the
date of the application for any offense in any other state which, if the offense had been
committed in California, would have been punishable under any of the following sections of the
California Penal Code: 266i, 315, 316, 318, or 647 (b); and
(f)(e) A list of any conviction(s) of the applicant in the five (5) years immediately preceding the
date of the application for felony violation of any of the following sections of the California Health
and Safety Code involving sale of a controlled substance: 11054, 11055, 11056, 11057, or
11058; and
(g)(f) A list of any conviction(s) of the applicant in the five (5) years immediately preceding the
date of the application for any offense in any other state which, if the offense had been
committed in California, would have been punishable under any of the following sections of the
California Health and Safety Code involving sale of a controlled substance: 11054, 11055,
11056, 11057, or 11058; and
(h)(g) A list of any pending charges or proceedings involving the applicant for violation of any
of the following sections of the California Penal Code: 266i, 315, 316, 318, or 647(b) and/or
California Health and Safety Code Sections 11054, 11055, 11056, 11057, 11058; and
(i)(h) Personal identification information, including, but not limited to, height, weight, hair
color, eye color, gender, social security number, driver license number, date of birth, place of
birth, full name, aliases, current residence address, current business address, current residence
telephone number, current business telephone number, and a complete set of fingerprints; and
(j)(i) Proof that the applicant is over the age of eighteen (18) years; and
(k)(j) An accurate statement of each residence of the applicant for the five (5) years
immediately preceding the date the application is submitted; and
(l)(k) Two (2) passport-quality photographs of the applicant; and
(m)(l) A list of any other permits or licenses from any agency for the provision of massage
services, as defined in Downey Municipal Code Section 9402.04(I), or any similar services held
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by the applicant for any period during the five (5) years immediately preceding the date the
application is submitted; and
(n)(m) A list of any revocation, suspension, denial, or other voluntary or involuntary surrender
or termination of any of the permits or licenses listed in response to Subsection (i), above; and
(o)(n) If the application is for a permit to operate a massage establishment, proof that the
applicant has complied with the Comprehensive Zoning Ordinance of the City of Downey.
(p)(o) Any other identification and information the Chief of Police (or his or her designee)
deems necessary to establish the truth of the information supplied in the application. (Added by
Ord. 419, adopted 5-8-72; added by Ord. 1049, adopted 4-28-98; amended by Ord. 1099,
adopted 4-24-01; amended by Ord. 1237, adopted 10-28-08)
SECTION 6554.1. PERMITS: INVESTIGATION, ISSUANCE, GROUNDS FOR DENIAL OR
REVOCATION.
Completed applications for permits to operate a massage establishment, to perform massage
services, or otherwise act as a massage practitioner, shall be reviewed and investigated by the
Chief of Police or his or her designee. The Chief of Police or his or her designee shall use best
efforts to complete the investigation and review of all applications within ninety (90) days after
submittal by the applicant. If after review and investigation the application is found to meet the
criteria of Sections 6554 and 6554.1, the Chief of Police or his or her designee shall issue the
permit; provided, however, if the investigation performed pursuant to this Section 6554.1 reveals
that the applicant for a permit is charged with, but not yet convicted of violation California Penal
Code Section 266i, 315, 316 or 647(b) and/or California Health and Safety Code Section 11054,
11055, 11056, 11057, or 11058, the Chief of Police may choose to take no further action on the
permit until such charges have been dismissed or the applicant has been determined to be not
guilty by a court of competent jurisdiction. Written notice of the approval or denial of the
application shall be provided by mail to the applicant at the current residence address provided
on the application. If the application is denied, the written notice shall contain a brief explanation
of the reason or reasons why the application was denied.
The decision to deny or take no further action on an application may be appealed in accordance
with Section 6404 of the Downey Municipal Code.
Applications for permits to operate a massage establishment, to perform massage services, or
otherwise act as a massage practitioner, may be denied or revoked for any or all of the following
reasons:
(a) Proof of any conviction(s) of the applicant or permit holder in the five (5) years immediately
preceding the date of the application, or during the valid period of a permit, for violation of any of
the following sections of the California Penal Code: 266i, 315, 316, 318, or 647 (b)
(b) Proof of any conviction(s) of the applicant or permit holder in the five (5) years immediately
preceding the date of the application, or during the valid period of a permit, for any offense in
any other state which, if the offense had been committed in California, would have been
punishable under any of the following sections of the California Penal Code: 266i, 315, 316,
318, or 647 (b).
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(c) Proof of any conviction(s) of the applicant or permit holder in the five (5) years immediately
preceding the date of the application, or during the valid period of a permit, for felony violation of
any of the following sections of the California Health and Safety Code involving sale of a
controlled substance: 11054, 11055, 11056, 11057, or 11058.
(d) Proof of any conviction(s) of the applicant or permit holder in the five (5) years immediately
preceding the date of the application, or during the valid period of a permit, for any offense in
any other state which, if the offense had been committed in California, would have been
punishable under any of the following sections of the California Health and Safety Code
involving sale of a controlled substance: 11054, 11055, 11056, 11057, or 11058.
(e) Failure to submit a complete application, illegible information will be deemed to be omitted.
For the purpose of this section, a complete application is one which contains all of the
information required by Downey Municipal Code Section 6554.
(f) Making any false statement on or in connection with the permit application or permit.
(g) Proof of any revocation, suspension, denial, or other voluntary or involuntary surrender or
termination of any of the permits or licenses listed in response to Subsection 6554 (k).
(h) The existence of any outstanding warrants for the applicant’s arrest, issued by any Federal
court or the court of any state.
(i) Reapplication within the greater of: six (6) months after a previous application from the
same applicant was denied; or within the time period that the ground(s) for the previous denial
may still be considered valid ground(s) for denial under this part. (Added by Ord. 419, adopted
5-8-72; amended by Ord. 876, adopted 1-10-89; amended by Ord. 1049, adopted 4-28-98;
amended by Ord. 1099, adopted 4-24-01)
6554.2 BACKGROUND CHECK RENEWAL
(a) Any person required by this Chapter to obtain background check approval shall submit
an application for renewal to the Chief of Police or his or her designee no sooner than 60 days
and no later than 45 days prior to the expiration of the previous approval.
(b) A renewal application must be accompanied by proof of payment of a renewal
application fee established by Council resolution and the information and items required for an
original application, except no additional photographs or fingerprints will be required if current
versions of these are already on file with the City.
(c) Background check renewal applications shall be reviewed in the same manner and on
the same terms as an original application.
6554.3 BACKGROUND CHECK REVOCATION
(a) A previously approved or renewed background check may be revoked if either:
1. One or more of the findings required to approve or renew a background check can no
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longer be made; or
2. The background check was approved or renewed, in whole or in part, on the basis of a
material misrepresentation or omission.
(b) If the City determines that grounds for revocation exist, a Notice of Revocation shall be
posted at the location of all massage establishments owned or operated by the applicant and
mail a copy of the notice by certified mail and regular mail, postage prepaid, addressed to the
applicant at the address that appear on the latest application. The Notice of Revocation shall
state the basis for revocation and include a copy of this Section. The applicant may submit to
the City Clerk a request for a hearing not later than 10 days of the date of the Notice of
Revocation. The request must be made in writing. If the applicant fails to request a hearing
within 10 days of the date of the Notice of Revocation, the revocation shall be final.
(c) If the applicant submits a timely request for a hearing, the hearing shall be scheduled to
occur not later than 30 days after receiving the request. Notice of the time and place of the
hearing shall be given to the applicant by personal service or via certified mail and regular mail,
postage prepaid, at least 10 days in advance of the date set for the hearing.
(d) The Chief of Police or his or her designee, along with the City Planner, shall conduct the
hearing and receive oral testimony and other evidence. The Chief of Police and City Planner
shall not be bound by the statutory rules of evidence in the conduct of the hearing, except that
hearsay evidence may not be the sole basis for revoking background check approval.
(e) The Chief of Police or his or her designee, along with the City Planner, shall make their
determination based upon the evidence presented in the record of the hearing and within 15
days of the conclusion of the hearing. The decision shall be in writing and shall contain written
findings of fact and their conclusions. The decision shall be served upon the applicant by
personal service or via certified and regular mail, postage prepaid sent to the address of the
applicant contained in the application. The decision shall be effective upon personal service or,
if service is by mail, then 2 business days following deposit with the United States Postal
Service.
6554.4 APPEALS
(a) Any decision to deny or revoke background check approval or renewal, after a hearing
has been held with the Chief of Police and City Planner, may be appealed by the applicant in
accordance with this Section. The appeal must be filed in writing with the City Clerk not later
than 10 days following the date of the notice of the determination. The written appeal must
specify the basis for the appeal and the action requested. If no such appeal is timely filed, the
decision shall be final.
(b) If the applicant submits a timely written appeal, the City Manager shall schedule a
hearing on the appeal to occur not later than 45 days after receiving the appeal. Notice of the
time and place of the hearing shall be given to the applicant by personal service or via certified
mail and regular mail, postage prepaid, at least 15 days in advance of the date set for the
hearing.
(c) The hearing on the appeal shall be de novo. The City Manager, or his or her designee,
shall act as the Hearing Officer and shall receive oral testimony and other evidence. The
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Hearing Officer shall not be bound by the statutory rules of evidence in the conduct of the
hearing, except that hearsay evidence may not be the sole basis for revoking background check
approval.
(d) The Hearing Officer shall make his or her determination based upon the evidence
presented in the record of the hearing and within 15 days of the conclusion of the hearing. The
decision shall be in writing and shall contain written findings of fact and his or her conclusions.
The Hearing Officer’s decision shall be served upon the appellant by personal service or via
certified and regular mail, postage prepaid sent to the address of the applicant contained in the
application. The Hearing Officer’s decision shall be effective upon personal service or, if service
is by mail, then 2 business days following deposit with the United States Postal Service. The
decision shall be final and conclusive and shall not be appealable to the City Council.
SECTION 6555. REGULATIONS.
Each person to whom a permit to operate a massage establishment is issued shall conduct that
operation in accordance with the following regulations:
Each massage establishment operator is required to obtain a business license and, prior to
issuance of a business license the operator must provide a business plan, along with a floor
plan, to identify the establishment will operate in compliance with all regulations set forth in this
Chapter.
(a) No person shall give, or assist in the giving of, any massage to any other person under the
age of eighteen (18) years, unless the parent or guardian of such minor person has given
consent thereto in writing.
(b) There shall be erected and maintained a recognizable and readable sign posted adjacent
to the main entrance identifying the premises as a massage establishment. All such signs shall
comply with the requirements of the City.
(c) Each permittee shall post in a conspicuous location upon the premises for which the permit
is issued:
(1) A copy of the massage establishment permit, when required; and
(2) A list of all the names of those persons providing massage services at the location for
whom a massage practitioner permit has been issued. The California Massage Therapy Council
Certificate and photographs for each person providing massage services at the massage
establishment must be displayed prominently on the premises in a location that can be readily
viewed by customers or City representatives.
(d) All massage practitioners who operate as independent contractors must obtain a
business license before commencing work at any massage establishment location or any
location where permitted as an accessory use as set forth in Section 6553.2.
6555.1 Massage Establishment Operating Requirements
(a) A list of all persons providing massage services at the establishment, including each
person’s full true name and other names used, photograph, and certificate from the California
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Massage Therapy Council must be provided to the Director. Any changes to the persons
providing massage services must be reported to the Director within 10 working days of such
change.
(b) A list of the services provided to the public and the prices and minimum lengths for each
must be available to the public in a conspicuous location on the premises.
(c) Each massage establishment must keep a written record of the date and hour of each
massage, the name and address of each customer, the name of the state certified massage
professional administering the massage and the type of massage administered. The records
must be maintained for a period of 2 years. Only those officials who are charged with
enforcement of this Chapter shall inspect these records and no information shall be used for any
purpose other than enforcement of this Chapter. No massage establishment owner or
employee shall utilize the records in any manner unrelated to enforcement of this Chapter.
(d) There shall be provided in each room, or portion of a room, where massage services are
provided, sufficient lighting and ventilation as required by this Code. Adequate ventilation and
lighting must be provided throughout the premises. Ventilation must be in accordance with
Uniform Building Code Section 1105. Lighting must be in accordance with National Electric
Code Article 220; and at least one artificial light of not less than 40 watts must be operative in
each room or enclosure designated for massage.
(e) Each room or area in which massage is practiced must have a table designed and
manufactured for medical or massage uses. No mattresses or beds are allowed. Massage
tables must be covered with pads made of durable washable plastic or other waterproof material
acceptable to the Health Officer.
(e)(f) There shall be provided and maintained adequate equipment for disinfecting and
sterilizing instruments used in performing massage services. Instruments utilized in performing
massage must not be used on more than one customer unless they have been properly
sterilized between uses. Adequate equipment for disinfecting and sterilizing instruments used in
performing the acts of massage must be provided on the premises.
(f)(g) There shall be provided and maintained adequate bathing, dressing, locker, and toilet
facilities for patrons.
(g) (h) Physical facilities for the massage establishment shall be maintained in good repair and
in a clean and sanitary condition. Warm and dry heat rooms, steam or vapor rooms, steam or
vapor cabinets, shower compartments, and toilets utilized in the operation shall be cleaned each
day. Bathtubs shall be cleaned after each use.
(h)(i) There shall be provided clean and sanitary towels and linen for each patron. The
common use of towels or linens shall not be permitted. Each massage establishment must be
equipped at all times with an adequate supply of clean, sanitary towels, coverings, and linens.
Clean towels, coverings, and linens must be stored in cabinets. Towels and linens must not be
used on more than one customer or client, unless they have first been laundered and
disinfected. Disposable towels and coverings must not be used on more than one customer or
client. Soiled linens and paper towels must be deposited in separate, approved receptacles.
(i)(j) A separate washbasin shall be provided for each portion of a massage establishment
wherein massage services are performed for the individual use of each massage practitioner.
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Such basin shall be provided with soap and hot and cold running water at all times and shall be
located within, or as close as practicable to, the area devoted to the performing of massage
services. In addition, there shall be provided at each washbasin sanitary towels placed in
permanently installed dispensers. (Added by Ord. 419, adopted 5-8-72; amended by Ord. 1049,
adopted 4-28-98)
(k) Two or more customers may be provided massage services in a single room only if a
state certified massage professional is present in the room at all times with the customers. No
persons other than those receiving a massage, parents or guardians of a minor who is receiving
a massage, and those administering a massage shall enter or remain within a room where a
massage is being given takes place.
(l) No person shall engage in any of the following sexual activities on the premises of the
massage establishment: fondling or other erotic touching of specified anatomical areas; sex
acts including, without limitation, intercourse, oral copulation, or sodomy; or masturbation.
(m) No owner, employee, or independent contractor of a massage establishment shall
expose his or her specified anatomical areas in the presence of any customer or guest or make
intentional physical contact with the specified anatomical areas of any customer or guest.
(n) Each customer’s genitals must be fully covered at all times. No person shall massage
the genitals of any customer. No person shall massage any female customer whose breasts
are not covered by a sheet or other opaque clothing. No person shall massage any female
customer’s breasts.
(o) All employees must be dressed in clean, opaque outer garments covering the body from
knee to neck, excepting hands and arms, at all times while on the premises.
(p) Each employee must be provided individual lockers on the premises of the massage
establishment.
(q) No person shall enter, be, or remain in any part of a massage establishment while in the
possession of, consuming or using alcoholic beverages or controlled substances, except
pursuant to a prescription for medication. The owner, operator, responsible managing
employee, or manager must not allow any person in violation of this subsection to enter or
remain upon the premises.
(r) No massage establishment shall operate as a school of massage or use the same
facilities as those of a school of massage.
(s) No massage establishment shall place, publish or distribute, or so direct or permit, any
advertising matter that depicts any specified anatomical areas.
(t) All exterior doors shall remain unlocked during business hours from the interior side
except when no staff is available to ensure the security of clients and massage staff who are
behind closed doors.
SECTION 6555.12. INSPECTIONS.
(a) The Building Official and the Fire Chief (or their designees) shall inspect the premises
proposed to be devoted to the massage establishment and shall certify, on the required
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permit application, compliance or noncompliance with the regulations set forth in Section
6555. (Added by Ord. 419, adopted 5-8-72; amended by Ord. 1049, adopted 4-28-98)
(a)(b) The Health Officer and every person authorized pursuant to this Code to enforce
this Chapter shall each have the right to periodically enter and inspect any massage
establishment for the purpose of ensuring compliance with all applicable laws and
regulations.
SECTION 6556. REGULATION OF BATHHOUSES AND SIMILAR ESTABLISHMENTS.
(a) Findings. Acquired Immune Deficiency Syndrome (AIDS) is a fatal disease of epidemic
proportions in Los Angeles County, wherein the City of Downey is located. Evidence exists that
certain commercial establishments in the county knowingly allow, and provide facilities for, their
patrons to engage in sexual contact with poses a significant risk for transmission of the human
immunodeficiency virus (HIV), which has been associated with AIDS. Such contact poses an
unacceptable public health risk which must be eliminated.
(b) Definitions. The following terms as used in this ordinance shall have the following
meanings:
(1a) “Bathhouse or similar commercial establishment” specifically includes any business
meeting the definition of either “encounter center, sexual” defined in Section 9402.04(N) of the
Downey Municipal Code or “hotel or motel, adult” defined in Section 9402.04(E) of the Downey
Municipal Code. “Bathhouse or similar commercial establishment” also includes any business
that charges a fee for admission and for that fee offers the use of one or more of the following:
(i) A swimming pool;
(ii) A spa or whirlpool;
(iii) A communal bath;
(iv) Movies or videos for reviewing on the premises.
(1b) Excluded from the definition of bathhouse or similar commercial establishment shall be any
hotel or motel, as defined in Subsection 4 of this section.
(2a) “Restricted activity” means anal or vaginal intercourse or oral copulation.
(2b) In recognition that medical information about AIDS and how it is transmitted continues to
develop, the county health officer or the health officer of the City may amend the definition of
restricted activity when in his or her opinion, such a change is supported by the then available
scientific information. Any such change shall be effective only after notice of such change is
given to the City Council and is published once a week for three weeks in a newspaper of
general circulation in the City.
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(3) “Private room” means any enclosed space large enough for more than one person to
enter, with a door capable of being locked from the inside, unless one or more of the following
applies:
(i) There is an opening no less than five feet (5′) nor more than six feet (6′) above the floor
through which the full interior of the enclosure is viewable from the exterior; or
(ii) The enclosure is not made available for use by patrons of the establishment; or
(iii) No more than one person at a time is allowed to enter the enclosure and there are no
openings between any adjoining enclosures through which physical contact between persons in
such adjoining enclosures is possible.
(4) “Hotel or motel” means a commercial establishment as defined in Sections 9136 and 9146
of the Downey Municipal Code where all the following requirements are met:
(i) The establishment holds itself out as being primarily in the hotel or motel business;
(ii) The establishment is licensed by all applicable jurisdictions as a hotel or motel;
(iii) The establishment complies with any applicable jurisdictions as a hotel or motel;
(iv) The establishment complies with all applicable state, City and County statutes, ordinances
and regulations controlling the operation of motels or hotels, including, but not limited to, Los
Angeles County Code Sections 11.20.150 et seq.
(c) Public Nuisance. Any bathhouse or similar commercial establishment which maintains
any private room or which admits patrons who engage in any restricted activity anywhere on the
premises is declared to be a public nuisance. As such, bathhouse and similar establishments
are strictly prohibited.
(d) Abatement. The County Health Officer or the Health Officer of the City shall take all
actions he deems necessary to abate any public health nuisance described in Subsection (c) of
this section. The action of the County Health Officer or Health Officer of the City may include,
but is not limited to, an order that the bathhouse or similar commercial establishment cease all
operation and not reopen without the specific written approval of the County Health Officer or
the Health Officer of the City. Any operator of any such public health nuisance who fails to
comply with any order of the County Health Officer or the Health Officer of the City shall be
subject to all the penalties provided in this Code or otherwise provided by law. (Added by Ord.
886, adopted 3-14-89; relocated and renumbered from Article VIII, Chapter 7 by Ord. 1010,
adopted 12-12-95; amended by Ord. 1237, adopted 10-28-08)
SECTION 5. Based upon the findings set forth in Sections 1 through 3 of this
Resolution, the Planning Commission of the City of Downey hereby recommends that the City
Council revise the following use to “Table 9.3.5. Commercial Zones Use Regulations” within
Section 9314.04 of Article IX of the Downey Municipal Code:
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Municipal Code Amendment (Massage Establishments) - PLN-19-00118
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SECTION 9314.04. COMMERCIAL ZONES USE REGULATIONS.
Use C-P C-1 C-2 C-3 C-
M
H-M Notes and Exceptions
General Commercial Uses
Massage therapy
establishment
NP NP C C C NP Subject to standards set
forth in Chapter 5 of Article
VI of the Downey Municipal
Code
SECTION 6. Based upon the findings set forth in Sections 1 through 3 of this
Resolution, the Planning Commission of the City of Downey hereby recommends that the City
Council revise the following definitions of Sections 9402.04 of Article XI of the Downey
Municipal Code as provided below. New text is identified with an underline and deleted text is
shown with a strikethrough; the amended definitions are proposed to read as follows:
(j) “Massage practitioner” shall have the same definition as provided in Downey Municipal
Code Section 9402.04(J). shall mean any person certified as a Massage Practitioner or
Massage Therapist pursuant to Section 4601 of the California Business & Professions Code or
any successor statute.
(k) “Professional massage/somatic association” shall have the same definition as provided in
Downey Municipal Code Section 9402.04(K).“California Massage Therapy Council” shall mean
a nonprofit organization stablished by Business & Professions Code Section 4602(a) to carry
out the responsibilities and duties set forth in Business & Professions Code Sections 4601
through 4621.
SECTION 7. The Secretary shall certify the adoption of this Resolution.
PASSED, APPROVED AND ADOPTED this 21st day of August, 2019.
Steven Dominguez, Chairman
City Planning Commission
I HEREBY CERTIFY that the foregoing is a true copy of a Resolution adopted by the Planning
Commission of the City of Downey at a regular meeting thereof, held on the 21st day of August,
2019, by the following vote, to wit:
AYES: COMMISSIONERS:
NOES: COMMISSIONERS:
ABSENT: COMMISSIONERS:
ABSTAIN: COMMISSIONERS:
Mary Cavanagh, Secretary
City Planning Commission
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