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AGENDA BILL Agenda Item No. 6 Date: April 7, 2015 To: El Cerrito City Council From: Sky Woodruff, City Attorney Subject: Extension of Massage Establishment Moratorium ACTION REQUESTED Staff recommends that the City Council conduct a public hearing and upon conclusion adopt the attached interim urgency ordinance making findings and extending a temporary moratorium on the establishment or relocation of new and existing massage establishments for ten months and fifteen days to become effective upon the expiration of the current moratorium. The City Council previously adopted an interim urgency ordinance temporarily suspending the issuance of any permits to new or existing massage establishments in the City. Staff recommends that the City Council now extend the moratorium to provide additional time to study and plan an approach to massage regulation following the Governor’s approval of Assembly Bill 1147. The moratorium will continue to prohibit the issuance of all City permits to new and existing massage establishments except for renewals and for emergency repairs and associated permits. The moratorium extension will be effective starting from the date of the expiration of the current moratorium. BACKGROUND As explained in the staff report discussing the initial moratorium ordinance, the Governor recently signed Assembly Bill 1147, which is effective January 1, 2015. Assembly Bill 1147 will amend the California Business and Professions Code to return land use authority over all massage establishments to cities. Since the adoption of the initial moratorium ordinance, Staff has been reviewing the new law, investigating current massage establishments and researching other possible regulatory schemes to update the City’s municipal and zoning codes. The extension of the moratorium will allow the City more time to: Address concerns regarding the establishment and operation of all massage establishments, Study the potential impacts massage establishments may have on the residents’ public health, safety and welfare, Study and determine what local regulations may be appropriate or necessary for massage establishments, Study and determine the appropriate zoning and location for massage establishments; and Consider appropriate controls for protection of public health and welfare. Pursuant to Government Code Section 65858, the City may extend a moratorium, by a four-fifths vote, when the ordinance contains legislative findings that there still exists a threat to the public health, safety and welfare. Staff and the City Attorney have prepared the attached extension ordinance for the City Council’s consideration. The ordinance would extend the temporary moratorium on the issuance ---PAGE BREAK--- Agenda Item No. 6 of business licenses or building permits for massage establishments and the relocation of existing massage establishments. Like the initial ordinance, the moratorium would not prohibit: • 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, which complies with all City, State, Federal or otherwise applicable, codes, rules, regulations or laws; and • Issuance of permits for emergency and emergency-related repairs; and • Massage establishments operated as Home Occupations; and • Persons engaged as: physicians, surgeons, chiropractors, osteopaths, nurses, physical therapists, or acupuncturists who are duly licensed to practice within the scope of their licenses; employed at hospitals, nursing homes, sanitariums, or any other health facility licensed by the state; coaches or trainers acting within the scope of their employment at accredited schools, and 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. In summary, this Ordinance would approve a ten month, fifteen day extension of the moratorium on the establishment or relocation of new and existing massage establishments in the City upon a four-fifths vote of the City Council. The moratorium may be extended once more for one year, so that the moratorium could ultimately be in effect for a total of two years. This extension is needed in order to conduct a study on how best to address the potential threats to public safety, health and welfare resulting from massage establishments in light of recent changes in state law that re-established local control over massage establishments. The act of adopting the moratorium is not a review or determination on the merits of allowing such use or not; instead, it will allow the City time to study the issue. STRATEGIC PLAN CONSIDERATIONS Adoption of the Massage Establishment moratorium would fulfill the City's Strategic Plan Goal E: Ensure the public's health and safety. LEGAL CONSIDERATIONS The City Attorney drafted the attached extension ordinance. Reviewed by: Scott Hanin City Manager Attachment: 1. Ordinance Page 2 ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 ORDINANCE NO. 2015-XX AN URGENCY ORDINANCE OF THE CITY OF EL CERRITO MAKING FINDINGS AND EXTENDING A TEMPORARY MORATORIUM ON THE ESTABLISHMENT OR RELOCATION OF NEW AND EXISTING MASSAGE ESTABLISHMENTS FOR TEN MONTHS AND FIFTEEN DAYS TO BECOME EFFECTIVE UPON THE EXPIRATION OF THE CURRENT MORATORIUM WHEREAS, on February 17, 2015, the City Council adopted Ordinance 2015-03 imposing a 45-day moratorium on the establishment or relocation of new and existing massage establishments and on the issuance of building permits or business licenses to massage establishments; and WHEREAS, Government Code section 65858 authorizes the extension of an urgency ordinance, after a noticed public hearing, to prohibit uses of land which may conflict with a contemplated general plan, specific plan or zoning proposal which the legislative body, planning commission or the planning department is considering or studying, or intends to study, within a reasonable period of time; and WHEREAS, City staff are currently in the process of studying the possible adoption of new regulations applicable to massage establishments in the City; and WHEREAS, Government Code Section 65858, subdivision provides that the legislative body of a city may, to protect the public safety, health and welfare, adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan, specific plan, or zoning proposal the City Council is considering or studying or intends to study within a reasonable time; that adoption of such urgency measures requires a four-fifths vote of the legislative body; that such measures shall be of no effect 45 days from the date of adoption, and may be extended a maximum of two times for a total duration of two years; and WHEREAS, the City desires to address community concerns regarding the establishment and operation of massage establishments within the City and intends to study the potential impacts massage establishments may have on the public health, safety and welfare, determine what local regulations, including but not limited to zoning regulations, may be appropriate to limit the negative impacts of massage establishments, and determine appropriate controls for the protection of public health, safety and welfare; and WHEREAS, the City will take steps to update its Municipal Code and Zoning Code to ensure that the City’s laws are consistent with the goals, policies and standards of the General Plan and the goals of the City Council to protect the public health, safety, and welfare; and WHEREAS, the City seeks to extend the moratorium on the issuance of permits to massage establishments to provide the City time to study and plan its approach to massage regulation following the Governor’s approval of Assembly Bill 1147; and WHEREAS, pursuant to Section 15001 of the California Environmental Quality Act (CEQA) Guidelines, this ordinance is exempt from CEQA based on the following: ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 This ordinance is not a project within the meaning of Section 15378 of the State CEQA Guidelines, because it has no potential for resulting in physical change in the environment, directly or ultimately. This ordinance is categorically exempt from CEQA under Section 15308 of the CEQA Guidelines as a regulatory action taken by the City pursuant to its police power and in accordance with Government Code Section 65858 to assure maintenance and protection of the environment pending the evaluation and adoption of contemplated local legislation, regulation and policies. This ordinance is not subject to CEQA under the general rule in CEQA Guidelines Section 15061(b)(3) that CEQA applies only to projects which have the potential for causing a significant effect on the environment. For the reasons set forth in subparagraphs and above, it can be seen with certainty that there is no possibility that this ordinance will have a significant effect on the environment. NOW, THEREFORE, the City Council of the City of El Cerrito does ordain as follows: Section 1. FINDINGS. The above recitals are hereby declared to be true and correct and findings of the City Council of the City of El Cerrito. In addition, after consideration of all evidence presented and testimony received at the February 17, 2015 and April 7, 2015 public hearings, the City Council finds that: 1. The threat to the public health, safety and welfare, as described in the findings adopted pursuant to Ordinance No. 2015-03 still exists; 2. Without proper regulation, the establishment and operation of additional massage establishment in locations within the City will result in harmful effects to the businesses, property owners and residents of the City, and illegal establishments that are unlawfully holding themselves out as massage businesses, and improperly operated massage establishments, may have serious objectionable impacts on the health, safety and welfare of the residents of the City. Section 2. MORATORIUM EXTENDED. A. Scope. In accordance with the authority granted to the City of El Cerrito under Article XI, Section 7 of the California Constitution and California Government Code section 65858, the moratorium imposed by Ordinance 2015-03 shall hereby be extended for ten (10) months and fifteen (15) days from and after the date that Ordinance 2015-03 expired. For the purposes of this ordinance, “massage establishment” shall have the same meaning as in section 8.10.010 of the Municipal Code. During the term of this extension: 1. No person, partnership, corporation, or other entity shall commence doing business as, or operations of, a massage establishment, nor shall a business license or operator’s permit be issued to a massage establishment owner unless specifically excluded herein. ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 2. No building permit shall be issued pursuant to Title 16 of the El Cerrito Municipal Code for the construction of a new building or the modification of an existing building for use as a massage establishment. 3. If a business license or permit to operate has been issued but the business has not yet initiated operation prior to the effective date of this ordinance, then the business may seek a refund for business license tax paid. B. Exceptions. This moratorium as extended shall not prohibit the following: 1) the renewal of a business license for an existing massage establishment provided that the renewal seeks to maintain the massage establishment in its current location, and the massage establishment is operating in a manner, and housed within a building, which complies with all City, State, Federal or otherwise applicable, codes, rules, regulations or laws; 2) massage establishments operated as home occupations in accordance with the El Cerrito Municipal Code; 3) the issuance of permits for emergency or emergency-related repairs; and 4) persons engaged as follows: physicians, surgeons, chiropractors, osteopaths, nurses, physical therapists, or acupuncturists who are duly licensed to practice within the scope of their licenses; employed at hospitals, nursing homes, sanitariums, or any other health facility licensed by the state; coaches or trainers acting within the scope of their employment at accredited schools, and trainers of amateur, semi- professional or professional athletes or athletic teams while engaged in their training responsibilities for and with athletes, and trains working in conjunction with a specific athletic event. C. Statutory Findings and Purpose. This extension ordinance is declared to be an interim ordinance as defined under California Government Code Section 65858. This ordinance is deemed necessary based on the findings of the City Council as set forth in Section 1 of this ordinance, and the additional information set forth below: 1. The purpose of this ordinance is to protect the public safety, health and welfare from a current and immediate threat posed by the establishment or relocation of new and existing massage establishments within the City of El Cerrito, in light of the State Legislature’s recent passage of Assembly Bill 1147 which reinstates significant local control over massage establishments to local jurisdictions, until such reasonable time as a detailed study of the possible adverse impacts such establishments might have on commercial and residential uses and the general public health, safety, and welfare. The facts constituting the urgency are: a) Cities throughout California, including neighboring cities, have received complaints regarding illicit activity occurring at massage establishments; b) there are no existing regulations within the City of El Cerrito that address the location of California Massage Therapy Council (“CAMTC”) certified massage establishments, and massage operations, which are near potentially sensitive areas throughout the City; c) such locations can be particularly sensitive to potential harmful effects of massage establishments; d) as applications for business licenses 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; e) unregulated massage establishments conflict with contemplated zoning and with the public health, safety, and welfare; and f) the State Legislature recently passed Assembly Bill 1147, which became law on January 1, 2015, and which changes the state statutory structure for local regulation of massage establishments and practitioners. 2. Absent the extension of the urgency ordinance, the establishment and operation of ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 massage establishments in the City would result in the harmful secondary effects identified above. 3. It is necessary to study the possible adoption of amendments to the City’s Municipal Code and Zoning Code in order to adopt legislation pursuant to the return of local land use control over massage establishments authorized by Assembly Bill 1147. 4. Issuing business licenses or building permits for new or relocating massage establishments prior to the completion of the City’s study of the potential impact of such facilities poses a current and immediate threat to the public health, safety, and welfare. 5. In light of the harmful secondary effects associated with massage establishments and the current and immediate threat such secondary effects pose to the public health, safety and welfare, it is necessary, in accordance with Government Code Section 65858, to extend a moratorium on the issuance of entitlements for and the establishment or relocation of massage establishments in the City to provide time for the City Council to further evaluate and consider possible adoption of legislation, guidelines and/or polices as required to avert the potential impacts of massage establishments. Section 3. SEVERABILITY. If any provision of this ordinance or the application thereof to any person or circumstance is held invalid, the remainder of the ordinance, including the application of such part or provision to other persons or circumstances shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this ordinance are severable. The City Council of the City of El Cerrito hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase hereof irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses, or phrases be held unconstitutional, invalid, or unenforceable. Section 4. EFFECTIVE DATE AND DURATION. This Ordinance shall become effective immediately upon passage and adoption if passed and adopted by at least four-fifths vote of the City Council and shall extend the moratorium immediately from and after the date that Ordinance 2015-03 expired for ten (10) months and fifteen (15) days therefrom, for a total moratorium period of one year, unless extended again by the City in accordance with California Government Code Section 65858. The foregoing Ordinance was adopted at a regular meeting of the City Council on April 7, 2015, and passed by the following vote: AYES: NOES: ABSENT: APPROVED: Mark Friedman, Mayor ---PAGE BREAK--- Agenda Item No. 6 Attachment 1 ATTEST: Cheryl Morse, City Clerk IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on 2015. Cheryl Morse, City Clerk