Report Prepared by: Kenneth Rozell, Senior Deputy City Attorney
Title
SUBJECT: Public Hearing Regarding Proposed Changes to the Massage Establishment Regulations and Specific Zoning Provisions Relating to Massage Uses
REPORT IN BRIEF
Consider amendments to the Chapter 5.44 of the Merced Municipal Code relating to massage establishments and amendments to the Zoning Ordinance (Title 20) relating to massage uses.
RECOMMENDATION
City Council - Adopt a motion:
A. Approving Environmental Review #14-25 (Categorical exemption); and,
B. Introducing Ordinance 2451, an Ordinance of the City Council of the City of Merced, California Amending Chapter 5.44, “Massage Establishments,” of the Merced Municipal Code; and,
C. Introducing Ordinance 2452, an Ordinance of the City Council of the City of Merced, California Amending Sections 20.20.020, “Permitted Uses,” 20.20.040, “Conditional Uses,” 20.22.020, “Permitted Uses,” 20.22.050, “Conditional Uses,” 20.24.020, “Permitted Uses,” 20.24.040, “Conditional Uses,” 20.26.040, “Conditional Uses,” and 20.28.040, “Conditional Uses,” of the Merced Municipal Code Regarding the Zoning of Massage Establishments as Conditional Uses Subject to Specific Conditions.
Body
ALTERNATIVES
1. Approve, as recommended by the Planning Commission and staff; or,
2. Deny; or,
3. Refer to staff for reconsideration of specific items (specific items to be addressed in the motion); or,
4. Continue to a future meeting (date and time to be specified in the motion).
AUTHORITY
City of Merced Charter, Section 200
CITY COUNCIL PRIORITIES
N/A
DISCUSSION
Background
For many years, there was no state-wide regulation of massage professionals or massage businesses, with regulations varying from jurisdiction to jurisdiction. In the City of Merced, individuals who wished to perform massage or bodywork services first have had to obtain a permit from City of Merced before they could provide this service (with certain limited exceptions). In order to obtain this permit, each applicant first had to go through an extensive background check conducted by the City that included a criminal background check and fingerprinting. In addition, before a massage establishment could be opened in the City, the owners of the proposed facility had to go through a similar approval process and obtain a conditional use permit if they wished to locate in the General Commercial (C-G) or Thoroughfare Commercial (C-T) zones.
In 2008, a state-wide massage organization lobbied for a process that would preempt local licensing and zoning regulations (such as the ones that the City of Merced had) so that a massage practitioner would only need one state certificate to provide massage services throughout the State of California. The bill was originally intended to professionalize the massage industry and ensure that massage therapists were treated the same as other professional service providers.
The Legislature adopted SB 731 in 2008, which (beginning on September 1, 2009) took away the rights of cities and counties in California to regulate those practicing massage if they had a state-issued massage certification. In addition, SB 731 took away the rights of cities and counties to impose almost all land use regulations on massage uses.
The loss of local control of massage establishments had an almost immediate negative impacts on cities throughout the state. In larger cities, numerous new massage establishments opened -- many of which were thinly disguised fronts for prostitution. Because the state had preempted almost all local land use authority for massage establishments, cities had a very difficult time in regulating and enforcing laws to ensure that the rapidly opening establishments did not violate the law. While the vast majority of massage practitioners provide only legitimate services (including the approximately 30 massage establishments who currently have licenses in Merced), the new rogue operators caused continuing bad publicity for legitimate massage practitioners throughout state.
The City of Merced experienced one such facility on 18th Street, which offered sexual services to customers (including undercover Merced police officers) before arrests were made at the facility. However, because state law preempted the City’s land use authority, the City had limited ability to stop the facility from reopening with a new name after a new operator applied for another permit from the City. After much effort on the City’s part, the City was able to permanently shut down this facility.
AB 1147
Finally, with substantial input from the League of California Cities and its member cities, the Legislature adopted AB 1147 in 2014 to address many of the issues caused by the prior legislation. Most importantly, AB 1174 returned land use authority over massage establishments and businesses to cities and counties so each public entity could properly regulate massage establishments within its jurisdiction.
AB 1147 still exempts massage professionals from obtaining local licenses if they have a state-issued massage license. The owners and/or operators of a massage establishment are also exempt from obtaining a local license if they have a state-issued massage license. AB 1147, however, authorizes cities and counties to enforce local ordinances that govern business licensing, and reasonable health and safety requirements.
Proposed Amendments to Chapter 5.44 and Zoning Code
With the regained authority to regulate massage establishments, City staff have reviewed the existing provisions of Chapter 5.44 of the Merced Municipal Code relating to massage establishments and the City’s Zoning Ordinance and prepared two sets of new regulations for the City Council's consideration.
As to Chapter 5.44 of the Merced Municipal Code, City staff have proposed a number of changes to streamline the massage regulations consistent with the changes in state law and to update a number of municipal code provisions, some of which have been in place for 40 years or more.
One key change that is being proposed is requiring that those individuals providing massage services within the City have a state-issued massage practitioner or massage therapist certificate (with certain limited exceptions). (Proposed amended MMC Section 5.44.100.) Those individuals who currently provide massage services pursuant to an existing City-issued massage technician permit could continue to do so until that permit expires. At that time, he or she would need to obtain a state-issued massage practitioner or massage therapist certificate in order to continue to act as a masseur, masseuse or massage/bodywork practitioner within the City. This proposed change would remove the Police Department from the administrative tasks of licensing (except in the narrow circumstance of an owner/operator not having a state massage license) and would free up police time for enforcement actions.
Another new provision would require each person providing massage services at a massage establishment to display his or her original certificate from the State of California as a massage practitioner or massage therapist. (Proposed amended MMC Section 5.44.220(A).) Upon the request of a member of law enforcement, each person providing massage services would need to provide his or her full name and certificate number from the State of California or unexpired permit from the City of Merced. (Proposed amended MMC Section 5.44.220(B).) This would allow the Police Department to easily determine if a massage practitioner is properly licensed to provide massage services.
Under the proposed changes to the Zoning Ordinance, massage therapy provided by a sole practitioner who has a valid State certificate as a massage practitioner or massage therapist would be a principally-permitted use in the Commercial Office (C-O), Neighborhood Commercial (C-N), and Central Commercial (C-C) zones under the proposed new Zoning Ordinance. Massage establishments are currently principally-permitted in those zones.
New massage establishments with two or more state-licensed massage practitioners or massage therapists in the C-O, C-N or C-C would first need to obtain a conditional use permit before opening for business within those zones. This is a change from the current code, which staff believes will allow most State-licensed massage therapists doing business out of doctor’s offices and beauty salons to continue to do so without undue restrictions.
All new massage establishments (including establishments run by a sole practitioner) in the General Commercial (C-G) and Thoroughfare Commercial (C-T) zones would need to first obtain a conditional use permit before opening for business in those zones.
The current Zoning Ordinance also requires a CUP for massage establishments in those zones.
In the C-O, C-N, C-C, C-G, and C-T zones, the following would be listed as conditionally permitted uses (requiring a Conditional Use Permit be issued by the Planning Commission): “Massage establishments, provided that a massage establishment permit has not been revoked at that location within 12 months from the date of the application for the CUP and a massage establishment permit is obtained pursuant to Chapter 5.44 of the Merced Municipal Code.”
This provision will give the City more discretion in handling businesses that are not complying with the requirements of the City’s Massage Establishment regulations (Chapter 5.44) and reopening under a different name at the same location. If this provision had been in place when the facility on 18th Street attempted to reopen, then there would have been clear grounds to deny the application to reopen at that location.
If the proposed amendments to the Zoning Code are adopted by the City Council, they would only affect new businesses or relocations of existing businesses. Current establishments with a valid City business license will be able to continue to operate a massage establishment at its current location without change. However, if the massage establishment chooses to relocate to another address within the City or add one or more additional massage therapists at the same address if they are currently operating as a sole practitioner, then they will be subject to the above requirements. Staff, however, will treat any conditional use permit as a minor use permit (current application fee of $563) to minimize the costs to massage professionals within the City.
Finally, on November 3, 2015, City staff mailed letters and hearing notices to approximately 30 existing massage establishments that have current City business licenses. City staff has received a few responses from those establishments regarding the ordinance changes, mostly asking for information regarding how they would specifically be affected. However, the City did not receive any written comments on the proposed changes and no massage professional attended the public hearing before the Planning Commission on November 18, 2015.
On November 18, 2015, the Planning Commission held a public hearing on the proposed changes to the Zoning Ordinance. No one from the public testified at the hearing. The Planning Commission subsequently voted 7-0 (7 ayes, 0 noes) to recommend to the City Council approval of the amendments to the Zoning Ordinance.
Environmental Clearance
The Planning staff has conducted an environmental review (#14-25) of the project in accordance with the requirements of the California Environmental Quality Act (CEQA), and a Categorical Exemption is being recommended (see Attachment 5).
ATTACHMENTS
1. Ordinance amending Chapter 5.44
2. Redline of Ordinance amending Chapter 5.44
3. Massage Zoning Ordinance
4. Redline of Massage Zoning Ordinance
5. Environmental Review #14-25 (Categorical Exemption)
6. Planning Commission Staff Report
7. Planning Commission Resolution #3057