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HomeMy WebLinkAboutORD-05-05 Extend Prohibition of New Massage BusinessesORDINANCE NO. 5- 05 I AN URGENCY MEASURE OF THE CITY COUNCIL OF THE CITY OF ORANGE EXTENDING THE PROHIBITION ON THE ESTABLISHMENT OF NEW MASSAGE BUSINESSES.WHEREAS, Section 65858(a) of the California Government Code authorizes the City Council to adopt, as an urgency measure, an interim ordinance prohibiting any uses which may be in conflict with a contemplated zoning proposal which the City Council, Planning Cornmission or Planning Department is studying to protect the public safety, health and welfare; and WHEREAS, on January II, 2005, the City Council adopted an interim ordinance prohibiting the establishment of new massage establishments, which ordinance was effective for 45 days; and WHEREAS, Government Code Section65858(b) authorizes the City Council to extend the interim ordinance for a period of 10 months and 15 days after publishing notice and holding a public hearing; and WHEREAS, notice of the hearing was published in a newspaper of general circulation in accordance with Government Code Section 65090; and WHEREAS, the City is contemplating changes to its massage establishment ordinance and is in the process of drafting such changes; and WHEREAS, in 1998 the City Council adopted Ordinance No. 1- 98, which significantly altered the manner in which the City treated massage establishments, recognizing the practice of massage as a legitimate therapeutic profession rather than treating massage establishments as an adult business; and WHEREAS, in 2001 the City Council adopted Ordinance 12-01 at the request of existing massage establishments to make provisions for a massage applicant to be issued a temporary massage permit with a six-month grace period to pass a national certification exam;and I WHEREAS, the purpose of Ordinance 12-01 was to assist massage establishments in retaining massage therapists who were on track to meet all the requirements of the City's massage ordinance, with the expectation that the massage therapists would fulfill all of the City's requirements within WHEREAS, since December of 2001 the City has processed 323 massage permit applications which have been terminated before or after the six-month grace period because the massage applicant did not provide the necessary documentation evidencing that he or she had completed the national certification exam; and WHEREAS, as of December 15, 2004, the City had 151 permitted massage therapists,61 of which have the temporary six-month permit or approximately 40% of all the practicing massage therapists in the City; and WHEREAS, four recently opened massage establishments have as many or more temporary (massage therapist) permittees than permanent permittees and one of these has six temporary permittees and no permanent ones, meaning that the facility has no massage therapist that has passed all of the City's requirements; and WHEREAS, based on passed experience, most of the existing 61 temporary permittees will never complete all of the City's requirements and/or even take the national certification exam; and WHEREAS, of the 27 massage establishments in the City, 17 of them have opened in the last two years and since October of 2003, six massage establishments have opened on Tustin Street within one mile of each other; and WHEREAS, as of November 30, 2004, of the 44 massage therapist permits that have been issued for four recently opened massage establishments on Tustin Street ( Orange County BodyCare, East/West Massage, Massage Center and Phoenix Body Works), 22 or 50% have been temporary massage permits; and WHEREAS, it has become apparent that a majority of the massage therapists receiving permits from the City are transient and will never take and/or pass the national certification exam, which is the best vehicle in the City's ordinance for determining whether a massage applicant has actually learned the profession of therapeutic massage; and WHEREAS, the City's efforts to treat the massage profession as a legitimate therapeutic profession are being undermined by an apparent abuse of the temporary massage permit; and WHEREAS, the primary purpose of setting requirements and standards for the issuance of a massage therapist permit was to reduce the risk of injury to massage clients and to rectify past abuses of massage establishments as avenues for prostitution; and WHEREAS, since it is apparent that a significant percentage of the massage therapists operating in the City do not meet the requirements and will not meet the requirements, the City Council finds that public safety, health and welfare is being compromised and that any new approval of massage establishments shall be prohibited for 45 days, unless and until this ordinance is terminated or extended; WHEREAS, the City Council determines, by a four-fifths vote, that this urgency ordinance is a matter of City-wide importance and necessary for the immediate preservation and protection of the public health safety or welfare of the community.I NOW THEREFORE, the City Council of the City of Orange hereby ordains as follows: SECTION I:The opening of any new massage establishment, as defined in Chapter 5. 56, is prohibited for 90 days from the adoption of this interim ordinance extension (May 23, 2005, or until rescinded by the City Council, whichever occurs earlier). This does not preclude the sale of existing massage establishments to new owners provided all existing City requirements are met. SECTION II:The City's Community Development Department shall continue to formally process all new applications for massage establishments, but shall not issue any approvals thereof and no new massage establishments shall be established during the period that this interim urgency ordinance remains in full force and effect and any future massage establishments shall comply with the requirements of any new regulations hereafter adopted and in effect at the time this interim ordinance terminates, SECTION IV:Based on the facts recited above, the City Council finds that further establishment of massage establishments under current zoning laws is a threat to the public safety, health and welfare. This interim ordinance is introduced, passed and adopted at one meeting and shall become effective immediately in accordance with Section 65858 of the California Govemment Code. SECTION V:I If any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that anyone (or more) section, subdivision, paragraph,sentence, clause or phrase had been declared invalid or unconstitutional. SECTION VI:A summary of this ordinance shall be published once within fifteen (15) days after this interim ordinance is passed, in a newspaper of general circulation, published and circulated in the City of Orange. The City Clerk shall post in the Office of the City Clerk, a certified copy Ord, No. 5- of the full text of such adopted interim ordinance along with the names of those City Council members voting for and against the interim ordinance in accordance with Government Code 36933. This interim ordinance shall be of no further force and effect 45 days from the date of its adoption unless it is subsequently extended in accordance with the provisions of Section 65858(a) of the California Government Code. ADOPTED this 22nd day of February, 2005. tL ffrt y of Orange ATTEST: ity Clerk, Ci STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF ORANGE ) I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that the foregoing Urgency Ordinance adopted as an urgency measure was introduced, duly passed and adopted at the regular meeting of the City Council held on the 22nd day of February 2005, by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: COUNCILMEMBERS: Smith, Ambriz, Murphy, Cavecche, Dumitru COUNCILMEMBERS: None COUNCILMEMBERS: None COUNCILMEMBERS: None City Clerk,Orange 4