HomeMy WebLinkAbout10. Adopt Ord-Amending DMC to adopt Regulations related to Massage EstablishmentsIL IIII I 11U.
T 0.' HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCILCITY MANAGER
FROM' OFFICE OF THE CITY MANAGER
BY: ALDO E. SCHINDLER, DIRECTOR OF COMMUNITY DEVELOPMENT
DATE- SEPTEMBER 24, 2019
SUBJECT: ADOPT AN ORDINANCE APPROVING A REQUEST TO AMEND VARIOUS
SECTIONS OF ARTICLE VI AND ARTICLE IX OF THE DOWNEY MUNICIPAL
CODE TO ADOPT REGULATIONS RELATED TO MASSAGE
ESTABLISHMENTS
That the City Council adopt:
•
the attached Ordinance.
1411-1- uelt MLqM1x91;jtfi-:N
Efficiency & Adaptability
Quality of Life, Infrastructure & Parks
FISCAL IMPACT
grFIN 1111F I
ATTACHMENTS
Attachments: A — Ordinance
•P&H k WAK6111• an I =Eel 11 VALS]ii
WHEREAS, 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,
WHEREAS, 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,
WHEREAS, 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 Resolution No. 19-3101.
WHEREAS, on September 10, 2019, the City Council held a duly noticed public hearing
to fully consider all oral and written testimony and facts and opinions regarding the amendment
to the Municipal Code; and,
WHEREAS, having considered all of the oral and written evidence presented to it at said
public hearing, the City Council of the City of Downey finds, determines and declares that the
requested Zone Text Amendment is not subject to CEQA, pursuant to Guideline Section 15305
of the State CEQA Guidelines regarding Minor Alterations in Land Use Limitations, because the
proposed Municipal Code Amendment will not result in any changes inland use or density,
WHEREAS, having further considered all of the oral and written evidence presented to it
at said public hearing, the City Council of the City of Downey 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
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
Attachment "A"
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.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DOWNEY DOES
HEREBY ORDAIN AS FOLLOWS:
SECTION 1. 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 stFikethrough; the amended regulations are proposed to
read as follows:
SECTION 466:L DEEINITI•
1171�01 a a 1 01 A
.. ..... ..... ...... .... ... .. .. T-14 I ... . .... ..
... ... . ...
f ( I
qh��"H-_lth QffibWshall mean the L
le for ins�mcl
tggpan�sjb Jnq massaq( W.9691--
wigi "massage" shall have the same definition as "massage services," as provided in
Downey Municipal Code Section 9402-04(1).
(b)M "Massage establishment" shall have the same definition as provided in Downey
Municipal Code Section 9402.04(L).
(c)& "Massage practitioner" shall have the same definition as provided in Downey Municipal
Code Section 9402.04(J).
(d)Q21 "Massage services" shall have the same definition as provided in Downey Municipal
Code Section 9402.04(1).
(e)Qi tPTotessionat4nassagekQma#GasseGiaf*nT'California Massa e Thera v Council" shall
have the same definition as provided in Downey Municipal Code Section 9402.04(K).
(-fy--i'S,cfool ,,providing-massn ge4nstn u, ction" -shall-mean--an-edtonal-institution -which-meets
at4east-the-ibliGwing-criteria
• I ' 0
{�}— is occr ait d..t+y reco r i eo stat r nat or crediting 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. pj
$ ptes r9 l'^J 9 + d F.: n rvrx ra m y
,
1-1- � an, WNTAT-MM, ATOWTI on
establishments and massae ractitioners must com l with allrovisions of this cnaoter vii t it
t ears f adoption of this r finance (Added by Ord. 419, adopted 5-8-72; amended by Ord..
1049, adopted 4-28-98)
SECTION 6553.2. PERMITS REQUIRED: EXEMPTIONS.
The rovisions of this cha ter shall not ar)r)lv to the followina persons when en a ed within the
scope of their respective duties.
{a) The orovisions of this cha ter shall not apply to cosmetologists; n barbers; o
are duly licensed by the State of California. This orovision shall a I solel to the
massaaina of the neck face seal' and hair of the customer or client.
W(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) topr of tl is , a , o 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 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)JQ 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)
• • .r i- a • • ••- _ • . .F
,,.. « *... • � : • .` : , • ., • ::• a •;x.. � „�. . ..: Y; .... � y • «: . • s.
•:- 1. ..
SAM
RIM
* •.i" r • i w•* • • i* x•
LOCATIONS6553.5 PERMITTED
(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.
Upon request for a business license, the qwher or operator shall subn2���
- ••ment ie M ictho how the establishrniht will •
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
as grounds for denial of the application. The application must be submitted fully completed_by all
arsons re uired to Dass 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
- • ad.
(d)Lc(d)Lcj 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) 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
ORDINANCE NO.
PAGE 5
committed in California, would have been punishable under any of the following sections of the
California Penal Code: 2661, 315, 316, 318, or 647 (b); and
(f)Lej 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)M 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)& 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'
(i)L!21 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
0)Q Proof that the applicant is over the age of eighteen (18) years; and
(k)fD An accurate statement of each residence of the applicant for the five (5) years
immediately preceding the date the application is submitted; and
(I) k Two (2) passport -quality photographs of the applicant; and
(m).Q 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(1), or any similar services held
by the applicant for any period during the five (5) years immediately preceding the date the
application is submitted; and
(n)Lm(n)Lml 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)Lnj 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)Lol 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
ORDINANCE NO
PAGE 6
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 2661, 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;
o aG ate' massages pF er 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: 2661, 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).
(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.
ORDINANCE NO.
PAGE 7
(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)
(a) Any person required by this Chapter • obtain bac�ground dhegk approval, shall su•mit
an application for renewal to the Chief of Police or his or her designee no sooner than 60 days
and nd lat6f tha6 45�days� orl• • �e, fratibri bf the I•revious, •
ORDINANCE NO.
PAGE 8
Service.
JIM11M. 0 6N;_Tr1Mnt1F11 or_�M -*Wl UK$] rM 1.4 We I
M I a UUMUMM
ail MAIN
IN111111MWIAnt- I WIT.
approval.
W1
M rm M 5 MMM
i
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.
facilities for patrons.
(g) Lhj Physical facilities for the massage establishment shall be maintained in good repair an
in a clean and sanitary condition. Warm and dry heat rooms, steam or vapor rooms, steam or
vapor _. • - ..shower f and toilets•. - operationshall• - is ea
day. Bathtubs shall be cleaned after each use. I
(i)fil 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.
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)
MMMIJIM
(b) Each &hPl6vie6 must bd provided
establishment�
remain upon the premises.
a 9 A 0
0! zi
.•1wr424611 I ♦
• - i i - • i.1 i -
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
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 • • r711 Filirr
(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:
(1 a) "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.;
ORDINANCE NO
PAGE 12
(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 orvaginal "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.
(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 (F) 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.
LcL-_PublicNuisance. 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
ORDINANCE NO
PAGE 13
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 2. The following, Section 9314.04, of Article IX of the Downey Municipal
Code shall be revised, and shall read as follows:
- er
SECTION 4. The following, Section 9402.04 of Article IX of the Downey Municipal
Code, shall be revised, and shall read as follows:
SECTION 9. If any section, subsection, paragraph, sentence, clause or phrase of this
Ordinance is declared by a court of competent jurisdiction to be unconstitutional or otherwise
invalid, such decision shall not affect the validity of the remaining portions of this Ordinance.
The City Council declares that it would have adopted this Ordinance, and each section,
subsection, sentence, clause, phrase or portion thereof, irrespective of the fact that any one or
more sections, subsections, phrases, or portions be declared invalid or unconstitutional.
SECTION 10. The City Clerk shall certify the adoption of this Ordinance and cause the
same to be published in the manner prescribed by law.
ORDINANCE NO.
PAGE 14
APPROVED AND ADOPTED this — day of . 2019.
RICK RODRIGUEZ, Mayor
ATTEST:
Maria Alicia Duarte, CMC
City Clerk
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES SS
CITY OF DOWNEY
I HEREBY CERTIFY that the foregoing`Ordinance No. 19- was introduced at a
Regular Meeting of the City Council of the City of Downey held on the -th day of _, 2019,
and adopted at a Regular Meeting of the City Council of the City of Downey held on the _ day
of _, 2019, by the following vote to wit:
I FURTHER CERTIFY thata summary of the foregoing Ordinance No. 19- was
published in the Downey Patriot, a newspaper of general circulation in the City of Downey, on
—, 2019 (after introduction), and on 2019 (after adoption including the
vote thereon). It was also posted in the Regular posting places in the City of Downey on the
same dates.
Maria Alicia Duarte, CMC
City Clerk