Title
Staff Report for an Urgency Ordinance Making Findings and Establishing a Temporary Moratorium on the Establishment or Relocation of New and Existing Massage Establishments to Become Effective Immediately
Staffreport
RECOMMENDATIONS
Staff recommends that the City Council adopt, by a 4/5 vote, an interim urgency ordinance to place a temporary moratorium on the issuance of business licenses on new massage establishments or the relocation of existing massage establishments within the City. The moratorium will only prohibit new massage establishments and the relocation of existing establishments to the extent permitted by State law. Upon its adoption, the moratorium will be effective immediately for forty-five days. The moratorium may be extended through subsequent public hearings and City Council actions for up to 22 months and 15 days. This moratorium is necessary in order to conduct a study on how best to address the primary and secondary effects to public safety, health and welfare associated with massage establishments, and pending changes to state law that will re-establish local land use controls over massage establishments. The act of adopting the moratorium is not a review or determination on the merits of allowing disallowing the proposed land use.
BACKGROUND AND SUMMARY
Cities have traditionally had local control over local zoning and land use authority related to massage establishments. In 2009, the Legislature adopted Senate Bill 731, which added the Massage Therapy Act to state law. The Massage Therapy Act effectively eliminated local zoning authority over massage establishments and limited San Leandro's ability to regulate massage establishments as it relates to business licensing, zoning, and promotion of public health, safety, and welfare.
Prior to the effective date of the Massage Therapy Act, San Leandro had 11 massage establishments. After the passage of the Massage Therapy Act in 2009 the number of massage establishments in the City increased to 30. The noticeable increase in establishments is similar to other cities in Alameda County. Cities throughout California have received numerous complaints regarding illicit activity, including prostitution, at massage establishments. One massage establishment in San Leandro with a history of multiple offenses for prostitution since 2011 was recently shut down as part of a county-wide law enforcement sting operation.
The Governor recently signed Assembly Bill 1147, which will be effective January 1, 2015. Assembly Bill 1147 will amend the California Business and Professions Code to return land use authority over massage establishments to cities and counties.
In order to comply with current State law, as applications for business licenses for massage establishments are submitted to the City, there is no determination whether the locations of such uses are consistent with the purpose and intent of the City's zoning ordinance. Absent the adoption of this interim urgency ordinance, it is likely that the establishment and operation of massage establishments within the City, without updated controls and regulations in place to address the primary and secondary impacts on the community, will result in harmful effects to neighboring businesses, property owners and residents.
A moratorium on the establishment of new or the relocation of existing massage establishments to provide time to study and plan an approach to massage regulation following the Governor's approval of Assembly Bill 1147 is necessary. The proposed moratorium will allow the City Council to (1) address community concerns regarding the establishment and operation of massage establishments, (2) study the impacts massage establishments have on public health and safety, (3) study and determine what regulations are legally allowed upon massage establishments that are owned by or employ massage therapists certified by the California Massage Therapy Council, (4) study and determine the appropriate zoning and location for massage establishments, and (5) determine appropriate controls for primary and secondary impacts associated with massage establishments for protection of public health and welfare.
With the return of local land use authority pursuant to Assembly Bill 1147, staff will study and may recommend amendments to the City's Municipal Code and Zoning Code for clear, legally consistent and uniform regulations related to the establishment, location and operation of massage establishments.
Pursuant to Government Code section 65858, the City may establish a moratorium prohibiting any uses that may be in conflict with a contemplated zoning proposal that the legislative body or the planning department is considering or studying or intends to study within a reasonable time. The City may adopt a moratorium on an urgency basis provided that the City finds that there exists a threat to the public health, safety and welfare.
Staff and the City Attorney have prepared the attached urgency ordinance for the City Council's consideration. As described in more detail below, this urgency ordinance would establish a temporary moratorium on the issuance of business licenses for massage establishments and the relocation of existing massage establishments. The moratorium would not prohibit:
1. The renewal of a business license for an existing massage establishment that seeks to maintain the massage establishment in its current location, in a manner, and housed within a building that complies with all City, State, Federal or otherwise applicable, codes, rules, regulations or laws; and
2. Persons engaged as: (a) physicians, surgeons, chiropractors, osteopaths, nurses, physical therapists, or acupuncturists who are duly licensed to practice within the scope of their licenses; (b) employed at hospitals, nursing homes, sanitariums, or any other health facility licensed by the state; (c) coaches or trainers acting within the scope of their employment at accredited high schools, junior colleges, colleges or universities, and (d) trainers of amateur, semi-professional or professional athletes or athletic teams while engaged in their training responsibilities for and with athletes, and working in conjunction with a specific athletic event.
3. The issuance of a business license to, or relocation of, a California Massage Therapy Council certified massage establishment until AB 1147 takes effect on January 1, 2015.
If a massage establishment was approved in the City, prior to the City having an opportunity to study and adopt massage establishment regulations, it could create conflicts among land uses, or conflict with the City's long-term planning goals and General Plan. Also, multiple jurisdictions, including San Leandro, have noticed a proliferation of massage establishments and criminal activity at these locations. Accordingly, establishment or relocation of massage establishments in the City at this time, before the City can adopt regulations or determine how best to address potential secondary effects of these types of uses, presents a current and immediate threat to the public health, safety, and welfare. Therefore, staff and the City Attorney recommend adoption of the urgency ordinance in order to avoid this current and immediate threat to the public health, safety, and welfare, which could occur if parties seeking to evade the adoption of regulations were permitted to obtain approval for uses that might defeat the ultimate objective of the adoption of regulations.
PREPARED BY: Richard D. Pio Roda, City Attorney, City Attorney's Office
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