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CC - FOUR-FIFTHS VOTE REQUIRED: Introduction and Adoption of an Interim Ordinance Extending for an Additional One Year Period the Temporary Moratorium Established by Ordinance No. 2015-001 and Extended by Ordinance No. 2015-002 on the Issuance of Any New Permit, License, Approval or Entitlement Pertaining to New Massage Establishments or the Location or Relocation of Existing Massage Establishments Within the City, and Declaring the Urgency Thereof.
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Contact Person/Dept: Thomas Gorham/CDD; Lisa Vidra/City Attorney
Phone Number: 310-253-5710; 310-253-5660
Fiscal Impact: Yes [X] No [] General Fund: Yes [X] No []
Public Hearing: [X] Action Item: [] Attachments: Yes [X] No []
Commission Action Required: Yes [] No [X]
Commission Name:
Public Notification: (E-Mail) Meetings and Agendas - City Council (03/10/16)
Department Approval: Carol Schwab, City Attorney (by H. Baker) (03/08/16)
Sol Blumenfeld, Director of Community Development (03/07/16)
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RECOMMENDATION
Staff recommends that the City Council introduce and adopt a proposed interim urgency ordinance (Attachment 1) extending for one year the temporary moratorium established by Ordinance No. 2015-001 and extended by Ordinance No. 2015-002 on the issuance of any new permit, license, approval or entitlement pertaining to new massage establishments or the location or relocation of existing massage establishments within the City, and declaring the urgency thereof. (This item requires a four-fifths vote.)
PROCEDURE
1. The Mayor seeks a motion from the City Council to receive and file the affidavits of publication and posting of notices and correspondence received in response to the public hearing notices; and,
2. The Mayor calls for a staff report (if desired); and,
3. The City Council poses questions to staff (if desired); and,
4. The Mayor opens public hearing and invites public comments; and,
5. The Mayor requests a motion to close the public hearing; and,
6. The City Council discusses the matter and takes desired actions.
BACKGROUND
The City’s interest in massage regulation relates to the unprecedented growth of massage establishments in the City and the extensive resources invested in ensuring they comply with state and local laws. Since 2009, the City has seen a remarkable increase in the number of massage establishments, from six to 22, as of April 13, 2015, the date the City Council adopted Ordinance No. 2015-001, establishing a 45-day temporary moratorium on the issuance of any new permit, license, approval or entitlement pertaining to new massage establishments or the location or relocation of existing massage establishments within the City, and declaring the urgency thereof (the “Moratorium”).
This growth in massage establishments coincided with the passage of Senate Bill 731 in 2008 and its successive amendments, which preempted many local controls relating to massage therapy, particularly in the areas of zoning and licensing of massage professionals. With this growth, the City had received and investigated a number of complaints related to suspected illegal activity at massage businesses, and at least 5 establishments were closed down by the City due to illegal activity on the premises in the recent years prior to the adoption of the Moratorium. There is concern about associated negative impacts on the quality of life, the local economy, and the public trust. However, effective January 1, 2015, Assembly Bill 1147 was enacted by the State, which vested cities with renewed authority to regulate massage establishments.
The Moratorium was adopted to allow the City time to thoroughly review and study the new state law pertaining to local regulation of massage establishments and to revise the Culver City Municipal Code (CCMC), procedures, and fees related to massage establishments. This will enable the City to adequately and appropriately balance the rights of existing massage establishment operators and future applicants who wish to operate in the City, with the preservation of the health, safety and welfare of the community.
On May 11, 2015, consistent with the provisions of Government Code Section 65858(d), the City Council adopted a Resolution and issued a report on the actions and measures taken by the City since the adoption of the Moratorium to inform the existing massage establishment operators, future applicants who may wish to operate in the City, and the community, on this matter. Subsequent to the issuance of the report, on May 26, 2015, the City Council adopted Ordinance No. 2015-002, which extended the Moratorium an additional ten months and 15 days from the initial 45-day period, through April 11, 2016, as permitted by Government Code section 65858(a). Ordinance No. 2015-002 will expire by its own terms on April 11, 2016.
On February 22, 2016, consistent with the provisions of Government Code Section 65858(d), the City Council adopted a Resolution and issued a report on the actions and measures taken by the City since the adoption of Ordinance No. 2015-002 to inform the existing massage establishment operators, future applicants who may wish to operate in the City, and the community on this matter.
Without the extension of the Moratorium on the permitting of massage establishments, the City may be required to continue to process applications for new massage establishments despite the fact the existing regulations are in the process of being updated. There are 22 massage establishments operating in the City under permits previously issued.
DISCUSSION
Review and Study of New State Law and Existing Regulations:
As set forth in the February 22, 2016 Report, since the adoption of the Moratorium, the City has continued its work to analyze state law and the City’s current massage regulations. The City continues to work to review and analyze numerous massage establishment ordinances and regulations adopted and in the process of being adopted by other California cities to comply with the 2015 state law. There are many different types of regulations, and staff is in the process of vetting various provisions to determine what is appropriate for Culver City. Staff from Business Licensing Division, Planning Division, Enforcement Services Division, the Police Department, and City Attorney’s Office continue to discuss the potential revisions to the CCMC and to review processes related to massage establishments in other nearby cities. Such review has included and continues to include discussion with other cities’ staff and attorneys, as well as consultation with technical experts.
The City also continues to study possible revisions to the CCMC, Title 17, Zoning, which would appropriately balance the rights of existing massage establishment operators and future applicants who wish to operate massage establishments within the City, with the preservation of the health, safety and welfare of the community. For instance, some cities require a Conditional Use Permit (CUP) or an administrative use permit (AUP) to operate a massage establishment, and such establishments are limited to certain zones in the city. Other cities require a regulatory permit but not a use permit. The study and review of the numerous ordinances being adopted by other cities are not yet complete. Once completed, the draft land use amendments to the Zoning Code will be required to go through a public review process, including consideration by the Planning Commission with a recommendation to the City Council. The City is pursuing its study, review and revisions as expeditiously as is practicable.
Declaration of Urgency:
The extension of the Moratorium is necessary to preserve the quality of life and protect the health, safety and welfare of the community. The Moratorium was passed with the intention of giving staff adequate time to craft proper rules, criteria, and conditions of approval for massage establishments that are consistent with state law, including operating conditions and restrictions that would advance the public interest. A moratorium continues to be required and should be extended immediately by adoption of the proposed urgency ordinance because staff studies are incomplete and ongoing. In addition, the absence of the adoption of this proposed ordinance would create a serious threat to the orderly and effective implementation of any amendments to the CCMC or other related regulations which may be adopted by the City as a result of studying this issue, in that the operations and land use by massage establishments under the existing regulations may be in conflict with or frustrate the possible updates and revisions to the CCMC and other regulations.
In fact, since the adoption of the Moratorium, the City has received several inquiries from applicants who wish to open new massage establishments in the City. Absent further extension of the current moratorium, it is likely the total number of massage establishments operating in the City would increase without adequate updates to the City’s laws.
Moratorium:
If the City Council adopts the proposed ordinance, the Moratorium will be extended through and including April 10, 2017, during which time no permits, licenses or entitlements shall be accepted, no consideration of any application for a permit, license or entitlement shall be made, and no permit, license or entitlement shall be approved or issued for new massage establishments or the relocation of existing massage establishments. In addition, no existing massage establishment may expand, whether by means of additional space, construction of a new facility, or by reconfiguration. For the purposes of this moratorium, “massage establishment” has the same meaning as “massage business” in CCMC Chapter 11.07.
The proposed extension to the current moratorium will allow the City time to continue its review, study and revisions to the City’s laws, rules, procedures and fees related to massage establishments, which will enable the City to adequately and appropriately balance the rights of existing operators and future applicants with the preservation of the health, safety and welfare of the community.
Legal Authority:
Section 614 of the City Charter provides: “Any ordinance declared by the City Council to be necessary as an urgency measure for preserving the public peace, health or safety and containing a statement of the reasons for its urgency may be introduced and adopted at any regular, adjourned, or special meeting if passed by a vote of at least four-fifths of its members.” If enacted by a four-fifths vote of the City Council, the proposed ordinance would take effect immediately and would continue in full force and effect through April 11, 2016 (unless repealed by the City Council).
The procedures set forth in Government Code Section 65858, which the City has chosen to follow for imposition and extension of the Moratorium provide that, after notice and a public hearing, a moratorium adopted by an urgency ordinance may be extended for 10 months and 15 days and subsequently extended for an additional one year period by a four-fifths vote of the City Council upon a finding the action is required to protect the public safety, health and welfare. Pursuant to the procedures established by Section 65858, if so extended, such moratorium would have no further force and effect two years after its original adoption.
The proposed ordinance is not subject to the California Environmental Quality Act (CEQA) pursuant to CEQA guidelines, California Code of Regulations, Title 14, Chapter 3, §15060(c)(2) [the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment] and §15060(c)(3) [the activity is not a project as defined in §15378] because it has no potential for resulting in physical change to the environment, directly or indirectly; rather it prevents changes to the environment pending the completion of the contemplated review of the CCMC.
FISCAL ANALYSIS
The adoption of the proposed ordinance would result in the City not collecting any permit application fees or business taxes for the opening of new massage establishments. Because it is speculative to determine the exact number of applications the City may have received during the period of the Moratorium, it is difficult to determine the fiscal impact at this time.
ATTACHMENTS
Proposed Ordinance
RECOMMENDED MOTION(S)
That the City Council:
Introduce and adopt an Interim Ordinance extending for one year the Temporary Moratorium established by Ordinance No. 2015-001 and extended by Ordinance No. 2015-002 on the issuance of any new permit, license, approval or entitlement pertaining to new massage establishments or the location or relocation of existing massage establishments within the City, and declaring the urgency thereof. (This item requires a four-fifths vote.)