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CC AG PKT 2013-07-08 #D
AGENDA STAFF REPORT DATE: July 8, 2013 TO: Honorable Mayor and City Council THRU: Jill R. Ingram, City Manager FROM: Jim Basham, Director of Community Development SUBJECT: PUBLIC HEARING REGARDING MUNICIPAL CODE AMENDMENT (MCA) 13-6 REGARDING MASSAGE SUMMARY OF REQUEST: Staff requests that after conducting a public hearing to consider the proposed Municipal Code Amendment 13-6 regarding massage and introduce first reading of Ordinance No. 1630. BACKGROUND: In recent years, the California Legislature has significantly reshaped the manner in which massage and massage establishments are regulated at the local level. Previously, cities could regulate massage practitioners and massage establishments subject only to the general limitations of its police powers. Accordingly, Seal Beach required all persons who practiced massage in the City to obtain a local massage technician permit and previously required all massage establishments to obtain a massage establishment permit. In 2008, the legislature created the California Massage Therapy Council (the "Council") to oversee a state-wide certification program for massage practitioners and massage therapists. To obtain certification, an applicant must have completed a minimum number of hours of training from a recognized training program (250 hours for massage practitioners and 500 hours for massage therapists) and pass a state massage and bodywork competency assessment examination. To ensure recognition of state certifications, the law also limited the authority of local governments to regulate massage professionals certified by the Council and massage establishments using only certified persons for the provision of massage services. Cities cannot require any person who is certified by the Council to also obtain a local certification or submit to a background check in order to practice massage. Moreover, cities must apply the same zoning rules to massage businesses that employ only state-certified massage practitioners that they apply to other "personal services." Agenda Item D The City previously amended the Municipal Code to comply with these requirements by creating exemptions for massage professionals certified by the Council and massage establishments that employ only certified persons for the provision of massage services. The City's earlier requirements for persons and businesses that did not qualify for the exemptions remained in effect, however. The City also created a definition of "personal services" to account for the lack of such a definition in the original legislation, Accordingly, Title 11 of the Municipal Code defines "personal services" as "non-medical services to individuals as a primary use." Examples of such uses specified in the Code include: barber and beauty shops, clothing rental, dry cleaning pick-up stores with limited equipment, home electronics and small appliance repair, self-service laundries, massage (licensed, therapeutic, non-sexual), personal fitness training, pet grooming with no boarding, and shoe repair shops. For zoning purposes, these services are treated equally. In 2011, the legislature acted again to broaden the preemptive effect of state law by providing a definition of "personal services," as any type of professional service that may be lawfully rendered only pursuant to a license, certification, or registration authorized by the Business and Professions Code, the Chiropractic Act or the Osteopathic Act . These include, among many others: • medical physicians • osteopathic physicians • chiropractors • dentists • occupational therapists • nurses • psychologists • veterinarians • acupuncturists • dietitians • social workers • real estate appraisers • real estate agents and brokers • optometrists Cities cannot impose any zoning limits on massage businesses that employ only state-certified massage practitioners that they do not also impose on any of these and other professional services. Cities must generally treat them the same for zoning purposes. Cities may, however, require background checks on the owners or operators of massage establishments who own 5% or more of a business and who are not state-certified massage professionals, including but not limited to: (1) criminal background checks, including requiring the submission of fingerprints for state and federal criminal background checks; and (2) submission of an application that requires the applicant to state information, including, but not limited to, the applicant's business, occupation, and employment history for 10 years preceding the date of application and the name and address of any massage business or other like establishment owned or operated by any person who is subject to the background check requirement. Further, if a non-certified owner's or operator's background check results in a finding that a city determines is relevant to owning or operating a massage establishment, then the city may regulate that Page 2 establishment in any manner it deems proper and that is in accordance with the law. Cities may also require massage establishments to follow reasonable health and safety standards for massage establishments, subject to certain limitations. They cannot, for example, require massage establishments that employ only state - certified massage professionals to provide additional restroom, shower, or other facilities not uniformly required of other personal service businesses. Nor can they require unlocked doors when there is no staff available to assure security for clients and massage staff that are behind closed doors, or require windows that provide a view into massage rooms that interfere with the privacy of the clients. On June 5, 2013, the Planning Commission held a public hearing regarding the proposed Municipal Code Amendment, after which it adopted Planning Commission Resolution 13 -8 recommending its approval to the City Council. A copy of Resolution 13 -8 and the draft minutes of the Planning Commission's June 5, 2013 meeting are included, respectively, as Attachments B and C to the report. ANALYSIS: As mentioned above, the City previously amended its massage regulations to comply with state law by carving out exceptions for state - certified massage professionals and those establishments that only employ state - certified massage professionals. This has created a two -tier system that is seen as increasingly complicated and anachronistic as the scope of state preemption has grown. Staff is therefore proposing a complete repeal of the City's existing massage regulations and the adoption of a new comprehensive ordinance on the subject. The key regulatory features of the proposed ordinance are as follows: 1. All persons providing massage services would be required to have a state massage certification. Massage establishments would be prohibited from allowing non - certified persons from providing massage services. The City's local massage technician permitting process would be eliminated and all persons who have a current, valid City approved massage technician permit would be required to obtain state certification before June 30, 2014. 2. Any person who operates massage establishment or owns 5% or more of a massage establishment and who is not a state certified massage professional would have to pass a detailed background check. The City's massage establishment permitting process would be eliminated. The Community Development Director would administer the background check process in consultation with the Chief of Police. Background check approval could be denied or revoked if any of the required findings for approval could not be made or if the applicant makes any material Page 3 misrepresentation or omission during the process. Decisions of the Director would be subject to appeal to the City Manager. Each massage establishment would have to comply with the numerous operational requirements. These include health and safety regulations that are very similar to those already currently found in the Code, as well as other requirements intended to ensure that only state-certified massage professionals are providing massage services. 4. Table 11.2.10.010 of the Municipal Code would be amended to allow massage establishments in commercial and mixed use districts in the same manner as business and medical offices. This would align the City's zoning regulations with the new state law definition of "personal services" and the requirement that the City zone all personal services in the same manner. The City's definition of "personal services" would be amended to remove reference to massage. Reference to massage as an accessory use would also be eliminated since state law does not distinguish between massage as a principal use and massage as an accessory use. The amendment would also clean up the table by eliminating references to "Day spa/Spa" and "Personal Improvement Services" as these terms are not otherwise defined or used in the Zoning Code. ENVIRONMENTAL IMPACT: Municipal Code Amendment 13-6 is exempt from review under the California Environmental Quality Act, Pub. Res. Code § 21000 et seq., ("CEQA") and the State CEQA Guidelines, 14 C.C.R. § 15000 et seq., because the amendment establishes rules and procedures to permit operation of existing and proposed facilities in a mariner already required by state law. The amendment does not have the potential to cause significant effects on the environment. Consequently, it is categorically exempt from further CEQA review under the CEQA Guidelines, Sections 15061, 15301, and 15305. LEGAL ANALYSIS: The City Attorney has reviewed the draft ordinance and approved it as to form. LEGAL NOTIFICATION: Legal notice of the Public Hearing was published twice in the Sun newspaper on June 20 and June 27, 2013. FINANCIAL IMPACT: There is no financial impact to the City as a result of this proposed action. Page 4 RECOMMENDATION: Staff recommends that after closing the public hearing, introduce an ordinance adopting Municipal Code Amendment 13-6 and direct staff to schedule a second reading of the same. S MITTED BY: Basham D ector of Community Development Attachments: NOTED AND APPROVED: ill ". Ingram, City ager A. Ordinance 1630 B. Planning Commission Resolution 13-8 C. Draft minutes of the June 5, 2013 Planning Commission meeting Page 5 ORDINANCE NUMBER 1630 AN ORDINANCE OF THE CITY OF SEAL BEACH AMENDING CHAPTER 5.45 AND TITLE 11 OF THE SEAL BEACH MUMCIPAL CODE REGARDING MASSAGE THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES ORDAIN AS Section 1. Chapter 5.45 of the Seal Beach Municipal Code is hereby repealed in its entirety and amended to read as follows: "Chapter 5.45 Massage and Massage Establishments 5.45.010 Definitions. For the purposes of this Chepher, the following words and phrases shall mean: A. Chief of PoIice: Seal Beach Chief of Police or his or her designee. B. Customer: any person on the premises of a massage establishment during operating hours who is not an owner, employne, independent contractor, or vendor of the massage establishment. C. Director: the Seal Beach Director of Community Development or his or her designee. O. Employee: any person who is employed by a massage establishment. E. Health Officer: The Orange County Health Department officer responsible for inspecting massage estabHshments Fn Seal Beach, or his or her designee. F. Massage: any method of treating the external paris of the body for nemeUio|, hme|Mh, or hygienic purposes. Massage indudaa, but in not limited hz, massage by means of pmnnuna, friction, stroking, kneading, rubbing, tapping, pounding; massage by means of stimulating the external parts of the body with any mechanical or electrical apparatus or appliances, or with rubbing alcohol, |inimon\a, anUsepUon, oi|u, powders, creams, lotions, ointmnnta, or other similar preparations; and massage by means of bo1ha, induding, but not limited to. Turkish, Russian, Swedish, Japanese, vapor, nhmwor, electric or magnetic massages, alcohol nubo, ovnmathenapy, of|exo|ogy, or any other type of system for treating or manipulating the human body with or without the character of a bath. G. Massage establishment: any establishment having a fixed place of business where any person engages in, conducts, or carries on, or so permits, the commercial practice of massage. H. Specified anatomical areas: as defined in Chapter i State certified massage professional: any person certified as a Massage Practitioner or Massage Therapist pursuant Ordinance Number 1630 to Section 4601 of the California Business & Professions Code or any successor statute. 5.45.020 Applicabiflty of Chapter. A. The provisions of this Chapter shall following persons when engaged within the respective professiorial duties: 1. Phyoidmna, surgeons, osteopmths, or physical therapists duly licensed respective professions in the state of Califomia. of California. not apply to the scope of their chiropractors, to practice their 2. Nurses registered under the laws of the state 3. Barbers. and beauticians duly licensed under the laws of the state of California. This provision shall apply solely to the massaging of the neck, baoe, oca|p, and hair of the customer or client. 4. The medical staff of hospitals, nursing homes, sanitariums, or other health care facilities duly licensed by the state of California. 5. Athletic coaches and trainers for either accredited high schools, junior colleges, and colleges or amahuur, semi-professional or professional athietes or athletic teams. B. The provisions of this Chapter shall apply to independent contractors of such persons if the independent contractor in engaged |n, or purports to be engaged in, the commercial practice of massage. 5.45.030 Certification Required. A. It is unlawful for any person other than a state certified massage professional to engage in the commercial practice of massage. B. It is unlawful for any person to mwn, oporab», or maintain a massage establishment unless each person engaging in massage at the establishment is a state certified massage professional. C. It is unlawful for any owner or employee in charge or control of a massage establishment to employ or permit person who is not currently a state certified massage professional to engage in the commercial practice of massage on the premises on the massage establishment. 5.45.040 Permitted Locations for Massage. A. It is unlawful to engage in the commercial practice of massage at any location other than a massage establishment established and operated in accordance with the requirements of federal, state, and local law, including but not limited to this Code. B. No massage establishment shall be established, oxpmndod, or altered in a manner that requires a building permit without first obtaining a written determination by the Director that the establishment complies with the requirements of this Code. Ordinance Number 1630 Upon request of the Director, the owner or operator shall submit a site plan depicting how the establishment will comply with this Code. 5.45.050 Background Check Required. A. Any person who operate massage esta ishment or owns 5 percent or more of a massage establishment and who is not a state certified massage professional must pass a background check. B. It is unlawful to eotab|ish, operote, or maintain any massage establishment operated or owned by any person who does not pass the background check required by this Section. 5.45060 Background Check Application. A. All persons required to pass a background check must submit an application to the Director on a form designated by the City, which shall include the following information: 1. The applicant's full true mame, any other names used; date of birth, any other date of birth used; nax, height, weight, color of hair, color of eyes; California Driver's License number, or California Identification number; Social Security number, present residence address and telephone number. 2. Two photographs of the applicant, in a form acceptable to the Chief of Pn|ino, nnd, if required by the Chief of PoIice, the applicants fingerprints. 3. The addresses of applicant's residences, and the dates of residency for each, during the prior 10 years. 4. The applicant's buoinenn, occupation, and employment history, and the dates thereof, for the prior 10 years. 5. The applicant's entire permit and license hiohory, and the dates and types thereof, including any permit or Iicense issued for a massage establishment, massage technician or adult business. The applicant must indicate whether any such permit or Iicense was revoked or suspended and, if so, the reasons for the decision. O. The applicant's entire record of criminal convictions (except non-felony traffic offenses) and ordinance vin|mUons, and the dates and places thereof. 7. Acceptable written proof (hat the applicant is at least 18 years ofage. D. The name and address of any massage establishment or other like establishment owned or operated by the applicant. 9. The name and address of the owner of the real property where the massage establishment is to be Iocated. If the applicant is not the legal owner of the pmperty, a notarized acknowledgement from the owner of the property that a massage establishment will be located on his or her property must also be submitted. -3- Ordinarice Number 1630 10. A complete description of all services to be provided at the massage establishment and at any other business to be operated by the applicant on the same or adjoining premises. 11. If the applicant is a corponyhon, its name exactly as shown in its Articles of Incorporation or Charter its state and date of incorporation, and the names and residence addresses of each of its current officers, dinac/nro, and any stockholders holding more than 5 percent of the corporation's stock. 12. If the applicant is a purtnenship, the name and residence addresses of each of the partners, including limited partners. If the applicant is a limited portnnrship, it shall furnish a copy of its Certificate of Limited Partnership as ftled with the county clerk. If one or more of the partners is a oorponsbon, the provisions of preceding paragraph pertaining to corporate applicants shall apply. 13. If the applicant is a corporation or portnemhip, the name of one of its officers or general partners who shall be its responsible managirig officer. Such person shall complete and sign all forms and submit the application fee on behalf of the applicant. The responsible managing officer must meet all requirements applicable to the applicant. 14. Such other identification and information as may be required by the Director to verify the information included in the application. 15. A statement by the applicant made under the penalty of perjury that all information submitted as part of the application is true and correct. B. The application must be accompanied by proof of payment of an application fee in an amount established by City Council Resolution. The application fee shall be in addition to any other fee or business license or tax required by this Code. C. The applicant must notify the Director of any change of address or other application information occurring during or after the background check process. 5.45.070 Background Check Review and Approval. A. The Director shall review all background check applications in consultation with the Chief of Police. The Director will complete all background checks within 00 days of determining that the appLicant has submitted all necessary information, unless the Department of Justice delays the pmoenn, in which case the Director shall notify the applicant that additional time is needed. B. The Director shall approve the application if the results of the background check support all of the following findings: 1. The applicant is at least 18 years of age and possesses the requisite background arid qualifications to operate or own a bona fide massage establishment, 2. The applicant has not violated or abetted the violation of any provision of this Chop$er, or any similar ordinance, |mvv, rule or regulation of any other public agency regarding the operation of massage establishments. Ordinance Number 1630 3. The applicant has fully cooperated in the background check and has not made a material misrepresentation in the appiication. 4. The applicant does not have an Adult Entertainment Permit issued by the City or similar permit in another jurisdiction. 5. The applicant has not within 5 years immediately preceding the date of filing the application: (a) Been convicted in a court of competent jurisdiction of, or entered a plea of guilty or nolo contendere to: (1) Any misdemeanor or felony offense which relates directly to the operation of a massage estab|ishment, whether as a massage establishment owner or operator, or as a massage technician; or (2) Any felony the commission of which occurred on the premises of a massage establishment. (b) Had any massage establishment, operator, Voohnkcian. practitioner, or trainee license or permit revoked, denied or suspended. (c) Been convicted in a court of competen jurisdiction of, or entered a plea of guilty or nolo contendere to: (1) Any violation of Penal Code @§ 266(h), 266 (i), 314, 315, 316. 318, or 647(a), (b), or (d), or any lesser included offense thereof or any other state law involving a crime of moral turpitude; (2) Conspiracy or attempt to commit any such offense; (3) Any offense in a jurisdiction outside the state of California which is the equivalent of any of the aforesaid offenses; (4) Any felony offense involving the sale of a controlled substance specified in Health and Safety Code Q§11054.11055.11056.11057.or11058;or (5) Any lesser-included offense of the above. (d) Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Penal Code §§ 11225 through 11235 or any similar provisions of law in a jurisdiction outside the state of California. (e) Been required to register under the provisions of Penal Code Section 290. C. The Director shall notify the applicant in writing of the results of the background check. An approved background check shall be valid for the term of 2 years from the date of such notice. Ordinance Number 1630 5.45.080 Background Check Renewal. A. Any person required by this Chapter to obtain background check approval shall submit an application for renewal to the Director no sooner than 60 days and no later than 45 days prior to the expiration of the previous approval. B. A renewal application must be accompanied by proof of payment of a renewal application fee established by Council resolution and the information and items required for an original application, except no additional photographs or fingerprints will be required if current versions of these are already on file with the City. C. Background check renewal applications shall be reviewed in the same manner and on the same terms as an original application. 5.45.090 Background Check Revocation. A. A previously approved or renewed background check may be revoked if either: 1. One or more of the findings required to approve or renew a background check can no longer be made; or 2. The background check was approved or renewed, in whole or in part, on the basis of a material misrepresentation or omission. B. If the Director determines that grounds for revocation exist, he or she shall post a Notice of Revocation at the location of all massage establishments owned or operated by the applicant and mail a copy of the notice by certified mail and regular mail, postage prepaid, addressed to the applicant at the address that appear on the latest application. The Notice of Revocation shall state the basis for revocation and include a copy of this Section. The applicant may submit to the City Clerk a request for a hearing not later than 10 days of the date of the Notice of Revocation. The request must be made in writing. If the applicant fails to request a hearing within 10 days of the date of the Notice of Revocation, the revocation shall be final. C. If the applicant submits a timely request for a hearing, the Director shall schedule the hearing to occur not later than 25 days after receiving the request. Notice of the time and place of the hearing shall be given to the applicant by personal service or via certified mail and regular mail, postage prepaid, at least 15 days in advance of the date set for the hearing. D. The Director shall conduct the hearing and receive oral testimony and other evidence. The Director shall not be bound by the statutory rules of evidence in the conduct of the hearing, except that hearsay evidence may not be the sole basis for not revoking background check approval. E. The Director shall make his or her determination based upon the evidence presented in the record of the hearing and within 15 days of the conclusion of the hearing. The decision shall be in writing and shall contain written findings of fact and the Director's conclusions. The Director's decision shall be served upon the applicant by personal service or via certified and regular mail, postage prepaid sent to the address of the applicant Ordinance Number 1630 contained in the application. The decision shali be effective upon personal service or. K service is by mail, then 2 business days following deposit with the United States Postal Service. 5/5.1O0 Appeals. A. Any decision by the Director to deny or revoke background check approval or renewal may be appealed by the applicant in accordance with this Section. The appeal must be filed in writing with the City Clerk not later than 10 days following the date of the notice of the determination. The written appeal must specify the basis for the appeal and the action requested. If no such appeal is timely flied, the decision of the Director shali be final. B. If the applicant submits a timely written appeal, the City Manager shall schedule a hearing on the appeal to occur not later than 25 days after receiving the appeal. Notice of the time and piace of the hearing shall be given 10 the appiicant by persorial service or via certified mail and regular mail, postage prepaid, at Ieast 15 days in advance of the date set for the hearing. C. The hearing on the appea shall bedonovo. The City Manager, or his or her designee, shall act as the Hearing Officer and shall receive oral testimony and other evidence. The Hearing Officer shall not be bound by the statutory rules of evidence in the conduct of the heahng, except that hearsay evidence may not be the soie basis for revoking background check approvai. D. The Hearing Officer shall make his or her determination based upon the evidence presented in the record of the hearing and within 15 days of the conclusion of the hearing. The decision shall be in writing and shall contain written findings of fact and his or her conciusions. The Hearing Officer's decision shall be served upon the appellant by personal service or via certified and regular mail, postage prepaid sent to the address of the applicant contained in the application. The Hearing Officer's decision shall be effective upon personal service or, if service is by mail, then 2 business days foliowing deposit with the United States Postal Service. The decision shali be final and conclusive and shail not be appealab!e to the City Council. 5.45.110 Massage Establishment Operating Requirements. Each massage establishment must comply with the following operational requirements in addition to any other appiicable rules or reguiations under federal, state, or Iocai law. A. The California Massage Therapy Council Certificate and photographs for each person providing massage services at the massage estabiishment must be displayed prominently on the premises in a location that can be readily viewed by customers or City representatives. B. A iist of aii persons providing massage services at the mstabUnhmen1, including each person's full true name and other names used, photognmph, and certificate from the California Massage Therapy Council must be provided to the Director. Any changes to the persons providing massage services must be reported to the Director within 10 working days of such change. Ordinance Number 1630 C. A list of the services provided to the public and the prices and minimum lengths for each must be available to the public in a conspicuous location on the premises. D. Each massage establishment must keep a written record of the date and hour of each massage, the name and address of each customer, the name of the state certified massage professional administering the massage and the type of massage administered. The records must be maintained for a period of 2 years. Only those officials who are charged with enforcement of this Chapter shall inspect these records and no information shall be used for any purpose other than enforcement of this Chapter. No massage establishment owner or employee shall utilize the records in any manner unrelated to enforcement of this Chapter. E. Each massage establishment must be equipped at all times with an adequate supply of clean, sanitary towels, coverings, and linens. Clean towels, coverings, and linens must be stored in cabinets. Towels and linens must not be used on more than one customer or client, unless they have first been laundered and disinfected. Disposable towels and coverings must not be used on more than one customer or client. Soiled linens and paper towels must be deposited in separate, approved receptacles. F. Adequate ventilation and lighting must be provided throughout the premises. Ventilation must be in accordance with Uniform Building Code Section 1105. Lighting must be in accordance with National Electric Code Article 220; and at least one artificial light of not less than 40 watts must be operative in each room or enclosure designated for massage. G. At least one separate wash basin, providing soap or detergent and hot and cold running water, must be provided at all times for the use of employees. Such basin shall be located within or as close as practicable to the area devoted to performing of massage services. Sanitary towels shall be provided at each basin. H. Each room or area in which massage is practiced must have a table designed and manufactured for medical or massage uses. No mattresses or beds are allowed. Massage tables must be covered with pads made of durable washable plastic or other waterproof material acceptable to the Health Officer. I. All wet heat rooms, dry heat rooms, steam rooms, vapor rooms, showers, bathrooms, cabinet rooms, and pools must be thoroughly cleaned and disinfected with a disinfectant approved by the Health Department as often as needed, but not less than once each day the premises are open. Bathtubs must be thoroughly cleaned with disinfectant approved by the Health Department after each use. J. The walls, ceilings, floors, and other physical facilities of the massage establishment must be maintained in good repair and in a clean and sanitary condition at all times. K. Instruments utilized in performing massage must not be used on more than one customer unless they have been properly sterilized between uses. Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage must be provided on the premises. Ordinance Number 1630 L Two or more customers may be provided massage services in a single room only if a state certified massage professional is present in the room at all times with the customers. No persons other than those receiving a mnmoaage, parents or guardians of a minor who is receiving a masoaga, and those administenng a massage shall enter or remain within a room where a massage is being given takes place. M. No person shall engage in any of the following sexual activities on the premises of the massage establishment: fondling or other erotic touching of specified anatomical areas; sex acts including, without |imiteUon, intenmurne, oral copulation, or sodomy; or masturbation. N. No owner, employee, or independent contractor of a massage establishment shall expose his or her specified anatomical areas in the preserice of any customer or guest or make intentional physical contact with the specified anatomical areas of ariy customer or guest. O. Each customers genitals must be fully covered at all times. No person shall massage the genitais af any customer. No person shall massage any female customer whose breasts are not covered by a sheet or other opaque clothing. No person shall massage any female cuslomers breasts. P. All employees must be dressed in dean, opaque outer garments covering the body from knee to neck, excepting hands and annn, at all times while on the premises. Q. Each employee must be provided individual lockers on the premises of the massage establishment. R. No person shall enter, bo, or remain in any part of a massage establishment while in the possession of, consuming or using alcoholic beverages or controlled oubstannon, except pursuant to a prescription for medication. The mwnar, operator, responsible managing emp|oyao, or manager must not allow any person in violation of this subsection to enter or remain upon the premises. S. No massage establishment shall operate as a school of massage or use the same facilities as those of a school of massage. T. No massage establishment shall plaoe, publish or disthbu0a, or so direc or permit, any advertising matter that depicts any specified anatomical areas. U. All exterior doors shall remain unlocked during business hours from the interior side except when no staff is available to ensure the security of clients and massage staff who are behind closed doors. 5.45.130 Inspection of Massage Establishments. A. Prior to first operating a massage establishment, the owner or operator must: (1) notify and cause the Health Officer to inspect the premises to ensure compliance with all applicable health laws and issue a report; and (2) submit a copy of the report to Director. Ordinance Number 1630 B. The Health Officer and every person authorized pursuant to this Code to enforce this Chapter shall each have the right to periodically enter and inspect any massage establishment for the purpose of ensuring compliance with all applicable laws and regulations." Section 2. Any person who has a valid, current City—issued massage technician permit as of the date that this Ordinance is adopted shall be deemed to be a State Certified Massage Professional for purposes of the regulations enacted by this Ordinance until June 30, 2014 and so long as he or she otherwise complies with all provisions of the regulations enacted by this Ordinance that apply to the practice of massage and operation of massage establishments. No City—issued massage technician permit shall be valid or recognized after June 30, 2014. Section 3. Table 11.210.010 of the Seal Beach Municipal Code is hereby amended as follows: TABLE 11.3.10.010 ( USE REGULATIONS — COMMERCIAL AND MIXED-USE DISTRICTS LC/RMD PO MSSP SC GC Additional Regulations Commercial Usa Types (Continued) Automobile Service 3tytinna/Vehiche Service and Repair, Minor -- -- — C C SeeSooUon 11.4.05.035 Automobile Washing — — — A A Large Vehicle Sales, Services and Rental — -- -- — Bakery L-4 -- L-4 L-4 L-4 Banks and Other Financial Institutions -- P P P P With Drive'7hnzuQh Facilities — C C C C SaeSmot1on 114.05.050 Automated Teller Machines (ATMs) — A A A A See Section 11.4.05.030 Building Materials and Services _ — — —|C Business Services P P L'2 L' ' 3 1 P P Commercial Recreation Large-scale -- -- — C C Small-scale — -- -- A A — — L � L 8ee�bep�p �^'.'''' °' ' -' ' ' ~~ Eating and Drinking Establishments Bars — -- C C C CoffeeHouaa/ Dessert Shop _ -- P� L'5� . . L-6 p p Restaurants, Fast -- -- — C C See Section Ordinance Number 1630 TABLE 11.2.10.010 (Continued) USE REGULATIONS — COMMERCIAL AND MIXED -USE DISTRICTS PO MSSP Additional Regulations LC/RMD SC GC commercrau use i ypes tc;onrinueai Food 4.05.050 Restaurants, Full Service P, C ® P' C See Section 11.4.05.015 Restaurants, Limited Service P P P See Section 11.4.05.015 Restaurants, Take Out Only -- P A A With Drive - Through Facilities — -- III See Section C 11.4.05.050 With Outdoor Eating Areas A, C A, C A, C See Section 11.4.05.090 .- EstablishmCnts Extended Hour Business ®� © See Section 11.4.05.055 Food and Beverage Sales ■■IIII■. Catering Services P P C —_ See Section 11.4.05.015 Convenience Market � P, C ®_ P, C See Section 11.4.05.015 Liquor Stores -- C See Section 11.4.05.070 Funeral Parlors and Mortuaries Home Improvement Sales and Services -- -- See Sections 11.4.05.090 and 11.4.05.140 Hotels and Motels BEM MEM Kennel Kiosks -- -- A A See Section 11.4.05.065 Laboratories -- P L 3 L P P Maintenance and Repair Services P P Massage Establishment P P L -2, L- - P C See Chapter 5.45, Massage 3 C and Massage Establishments Offices, Business and di Professional P P P P P Offices, Medical and Dental P P P Parking Facilities, Commercial -- C See Chapter 11.4.20 Pe; ,at P ® P P Ordinance Number 1630 TABLE 11.2.10.010 ( USE REGLJLATIONS — COMMERCIAL AND MIXED-USE DISTRICTS Section 4. Section 11.6.05.010 of the Municipal Code is hereby amended by the addition of a definition of "Massage Establishment" to read as follows: Massaqe Establishment: any establishment having a fixed place of business where any person engages in, conduds, or carries on, or so pemnita, the commercial practice of massage. See also Chapter 5.45, Massage and Massage Establishments.' Section 5. The definition of "Personal Services" in Section 11.6.05.010 of (he Municipal Code is hereby amended as foliows: "Personal Services: establishments providing non-medical services to individuals as a primary use. Examples of these uses include: • barber and beauty shops • clothing rental • dry cleaning pick- pohunaovvith|imitedequipmmnt �&�� LC/RMD �� MSSP SC �� Additional Regulations Commercial Use Types (Continued) �m.� 4Aeeeagel 8cocu A A L2 L ' 3-A cvy Personal Services P P P P P #�a*ea9� A A A � L2 L f�� f�\ ` '~'''~-'-=~ ' 3A ooauo/y Retail Sales P — P P P See Section 11.4.05.090 Large Format — | — — P P See Section 11.4.05.140 Establishments -- — — -- ° Chapter 11.4.65 Theaters -- -- C — C Other Applicable Use Regulations Accessory Use See Section 11.4.05.010: Accessory Business Uses and Activities See Chapter 11.4.40: Nonconforming Uses, Structures, ' and Lots Temporary Use See Chapter 11.5.25: Director Determinations L-1 Permitted if an existing use; new uses are prohibited. See Chapter ' � 11.4.40: Nonconforming Uses, Structures, and Lots L'2 Not allowed on the ground floor along Main Street without a Conditional Use Permit; allowed on side streets as a permitted use L-3 If on the ground floor along Main Street permitted if an existing use; new uses are prohibited. See Chapter 11.4.40: Nonconforming Uses, Structures, and Lots L-4 Bakery production sold at retail on premise L-5 Permitted use if Iess than 1,000 square feet and Iess than 10 seats L-6 Minor Use Permit required if 1 ' 0U0 square feet or more and 10 seats or more Section 4. Section 11.6.05.010 of the Municipal Code is hereby amended by the addition of a definition of "Massage Establishment" to read as follows: Massaqe Establishment: any establishment having a fixed place of business where any person engages in, conduds, or carries on, or so pemnita, the commercial practice of massage. See also Chapter 5.45, Massage and Massage Establishments.' Section 5. The definition of "Personal Services" in Section 11.6.05.010 of (he Municipal Code is hereby amended as foliows: "Personal Services: establishments providing non-medical services to individuals as a primary use. Examples of these uses include: • barber and beauty shops • clothing rental • dry cleaning pick- pohunaovvith|imitedequipmmnt Ordinance Number 1630 • home electronics and small appliance repair • Laundromats (self-service laundries) • personal fitness training • pet grooming with no boarding • shoe repair shops • tailors • tanning salons These uses may also include accessory retail sales of products related to the services provided." Section 6. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this or inance or any part thereof is for any reason held to be inva|id, such invalidity shall not affect the validity of the remaining portions of this ordinance or any part hereof The City Council of the City of Seal Beach hereby declares that it would have passed each nooUon, auboecdon, aubdivinion, pomgnoph, senbsnms, clause or phrase henecf, irrespective of the fact that any one or more sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared invalid. Section 7. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same or a summary thereof to be published and posted in the manner required by Iaw. PASSED, APPROVED AND ADOPTED by the Seal Beach City Council at a regular meeting held on the day of , 2013. Mayor ATTEST: City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } |. Linda Devine, {]h/ Clerk of the City of Seal 8aanh, do hereby certify that the foregoing Ordinance was introduced for firstreading ota regular meeting held un the 8th day of July . 2013 and was passed, approved and adopted by the City Council at a regular meeting held on the day of , 2013 by the following vote: AYES: Council Members: NOES: Council Members: ABSENT: Council Members: ABSTAIN: Council Members: And do hereby further certify that Ordinance Number 1627 has been published pursuant to the Seal Beach City Charter and Resolution Number 2836. City Clerk EXHIBIT B" RESOLUTION NO. 13-8 A RESOLUTION OF THE SEAL BEACH PLANNING COMMISSION RECOMMENDING ADOPTION OF MUNICIPAL CODE AMENDMENT 13-6 REGARDING MASSAGE THE PLANNING COMMISSION OF THE CITY OF SEAL BEACH DOES HEREBY FIND AND RESOLVE AS FOLLOWS: Section 1. On June 5, 2013, the Planning Commission held a duly noticed public hearing to consider Municipal Code Amendment 13-6, which would amend Municipal Code Chapters 5.45 and 11.2.10 of the Seal Beach Municipal Code regarding Massage as set forth in the draft ordinance included as Attachment "A" to this Resolution. Section 2, Municipal Code Amendment 13-6 is exempt from review under the California Environmental Quality Act, Public Resources Code § 21000 et seq. ("CEQA") and the State CEQA Guidelines, 14 C.C.R. § 15000 et seq. because it would establish rules and procedures to permit operation of facilities already permitted to operate under existing law and make minor revisions and clarifications to existing regulations and procedures related thereto. The amendment would not have the potential to cause significant effects on the environment. It is therefore categorically exempt from further CEQA review under CEQA Guidelines Sections 15301, 15305, and 15308. Section 3. The Planning Commission recommends that the City Council adopt Municipal Code Amendment 13-6. PASSED, APPROVED AND ADOPTED by the Seal Beach Planning Commission at a meeting thereof held on June 5, 2013, by the following vote: AYES: Commissioners a 016-bn , e'124b-(U 0-b42 IL— LAV 0 NA. NOES: Commissioners ABSENT: Commissioners C ABSTAIN: Commissioners A EST: . Basham PI ning Commission Secretary S7296-0001\ I 5854981; I .doc Sandra Massa-Litt Chairperson ATTACHMENT "A" DRAFT ORDINANCE REGARDING MUNICIPAL CODE AMENDMENT 13 -6 -2- S7296 -000111585498v I .do: ORDINANCE NO. AN ORDINANCE OF THE CITY OF SEAL BEACH AMENDING CHAPTER 5.54 AND TITLE 11 OF THE SEAL BEACH MUNICIPAL CODE REGARDING MASSAGE THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES ORDAIN AS FOLLOWS: Section 1. Chapter 5.45 of the Seal Beach Municipal Code is hereby repealed in its entirety and amended to read as follows: "Chapter 5.45 Massage and Massage Establishments 5.45.010. Definitions For the purposes of this Chapter, the following words and phrases shall mean: A. Chief of Police: Seal Beach Chief of Police or his or her designee. B. Customer: any person on the premises of a massage establishment during operating hours who is not an owner, employee, independent contractor, or vendor of the massage establishment. C. Director: the Seal Beach Director of Community Development or his or her designee. D. Employee: any person who is employed by a massage establishment. E. Health Officer: The Orange County Health Department officer responsible for inspecting massage establishments in Seal Beach, or his or her designee. F. Massage: any method of treating the external parts of the body for remedial, health, or hygienic purposes. Massage includes, but is not limited to, massage by means of pressure, friction, stroking, kneading, rubbing, tapping, pounding; massage by means of stimulating the external parts of the body with any mechanical or electrical apparatus or appliances, or with rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations; and massage by means of baths, including, but not limited to, Turkish, Russian, Swedish, Japanese, vapor, shower, electric or magnetic massages, alcohol rubs, aromatherapy, reflexology, or any other type of system for treating or manipulating the human body with or without the character of a bath. Ordinance Number G. Massage establishment: any establishment having a fixed place of business where any person engages in, conducts, or carries on, or so permits, the commercial practice of massage. H. Specified anatomical areas: as defined in Chapter 5.15 of this Code. I. State certified massage professional: any person certified as a Massage Practitioner or Massage Therapist pursuant to Section 4601 of the California Business & Professions Code or any successor statute. 5.45.020. Applicability of Chapter A. The provisions of this Chapter shall not apply to the following persons when engaged within the scope of their respective professional duties: 1. Physicians, surgeons, chiropractors, osteopaths, or physical therapists duly licensed to practice their respective professions in the state of California. 2. Nurses registered under the laws of the state of California. 3. Barbers and beauticians duly licensed under the laws of the state of California. This provision shall apply solely to the massaging of the neck, face, scalp, and hair of the customer or client. 4. The medical staff of hospitals, nursing homes, sanitariums, or other health care facilities duly licensed by the state of California. 5. Athletic coaches and trainers for either accredited high schools, junior colleges, and colleges or amateur, semi - professional or professional athletes or athletic teams. B. The provisions of this Chapter shall apply to independent contractors of such persons if the independent contractor is engaged in, or purports to be engaged in, the commercial practice of massage. 5.45.030. Certification Required A. It is unlawful for any person other than a state certified massage professional to engage in the commercial practice of massage. B. It is unlawful for any person to own, operate, or maintain a massage establishment unless each person engaging in massage at the establishment is a state certified massage professional. 2 Ordinance Number C. It is unlawful for any owner or employee in charge or control of a massage establishment to employ or permit a person who is not currently a state certified massage professional to engage in the commercial practice of massage on the premises on the massage establishment. 5.45.040. Permitted Locations for Massage A. It is unlawful to engage in the commercial practice of massage at any location other than a massage establishment established and operated in accordance with the requirements of federal, state, and local law, including but not limited to this Code, B. No massage establishment shall be established, expanded, or altered in a manner that requires a building permit without first obtaining a written determination by the Director that the establishment complies with the requirements of this Code. Upon request of the Director, the owner or operator shall submit a site plan depicting how the establishment will comply with this Code. 5.45.050. Background Check Required A. Any person who operates massage establishment or owns 5 percent or more of a massage establishment and who is not a state certified massage professional must pass a background check. B. It is unlawful to establish, operate, or maintain any massage establishment operated or owned by any person who does not pass the background check required by this Section. 5.45.060. Background Check Application A. All persons required to pass a background check must submit an application to the Director on a form designated by the City, which shall include the following information: 1. The applicant's full true name, any other names used; date of birth, any other date of birth used; sex, height, weight, color of hair, color of eyes; California Driver's License number, or California Identification number; Social Security number, present residence address and telephone number. 2. Two photographs of the applicant, in a form acceptable to the Chief of Police, and, if required by the Chief of Police, the applicant's fingerprints. 3. The addresses of applicant's residences, and the dates of residency for each, during the prior 10 years. Ordinance Number 4. The applicant's business, occupation, and employment history, and the dates thereof, for the prior 10 years. 5. The applicant's entire pern-iit and license history, and the dates and types thereof, including any permit or license issued for a massage establishment, massage technician or adult business. The applicant must indicate whether any such permit or license was revoked or suspended and, if so, the reasons for the decision. 6. The applicant's entire record of criminal convictions (except non-felony traffic offenses) and ordinance violations, and the dates and places thereof. 7. Acceptable written proof that the applicant is at least 18 years of age. 8. The name and address of any massage establishment or other like establishment owned or operated by the applicant. 9. The name and address of the owner of the real property where the massage establishment is to be located. If the applicant is not the legal owner of the property, a notarized acknowledgement from the owner of the property that a massage establishment will be located on his or her property must also be submitted. 10. A complete description of all services to be provided at the massage establishment and at any other business to be operated by the applicant on the same or adjoining premises. 11. If the applicant is a corporation, its name exactly as shown in its Articles of Incorporation or Charter, its state and date of incorporation, and the names and residence addresses of each of its current officers, directors, and any stockholders holding more than 5 percent of the corporation's stock. 12. If the applicant is a partnership, the name and residence addresses of each of the partners, including limited partners. If the applicant is a limited partnership, it shall furnish a copy of its Certificate of Limited Partnership as filed with the county clerk. If one or more of the partners is a corporation, the provisions of preceding paragraph pertaining to corporate applicants shall apply. 13. If the applicant is a corporation or partnership, the name of one of its officers or general partners who shall be its responsible managing officer. Such person shall complete and sign all forms and 4 Ordinance Number submit the application fee on behalf of the applicant. The responsible managing officer must meet all requirements applicable to the applicant. 14. Such other identification and information as may be required by the Director to verify the information included in the application. 15. A statement by the applicant made under the penalty of perjury that all information submitted as part of the application is true and correct. B. The application must be accompanied by proof of payment of an application fee in an amount established by City Council Resolution. The application fee shall be in addition to any other fee or business license or tax required by this Code. C. The applicant must notify the Director of any change of address or other application information occurring during or after the background check process. 5.45.070. Background Check Review and Approval A. The Director shall review all background check applications in consultation with the Chief of Police. The Director will complete all background checks within 60 days of determining that the applicant has submitted all necessary information, unless the Department of Justice delays the process, in which case the Director shall notify the applicant that additional time is needed. B. The Director shall approve the application if the results of the background check support all of the following findings: 1. The applicant is at least 18 years of age and possesses the requisite background and qualifications to operate or own a bona fide massage establishment. 2. The applicant has not violated or abetted the violation of any provision of this Chapter, or any similar ordinance, law, rule or regulation of any other public agency regarding the operation of massage establishments. 3. The applicant has fully cooperated in the background check and has not made a material misrepresentation in the application. 4. The applicant does not have an Adult Entertainment Permit issued by the City or similar permit in another jurisdiction. Ordinance Number 5. The applicant has not within 5 years immediately preceding the date of filing the application: (a) Been convicted in a court of competent jurisdiction of, or entered a plea of guilty or nolo contendere to: (1) Any misdemeanor or felony offense which relates directly to the operation of a massage establishment, whether as a massage establishment owner or operator, or as a massage technician; or (2) Any felony the commission of which occurred on the premises of a massage establishment. (b) Had any massage establishment, operator, technician, practitioner, or trainee license or permit revoked, denied or suspended. (c) Been convicted in a court of competent jurisdiction of, or entered a plea of guilty or nolo contendere to: (1) Any violation of Penal Code §§ 266(h), 266 (i), 314, 315, 316, 318, or 647(a), (b), or (d), or any lesser included offense thereof or any other state law involving a crime of moral turpitude; (2) Conspiracy or attempt to commit any such offense; (3) Any offense in a jurisdiction outside the state of California which is the equivalent of any of the aforesaid offenses; (4) Any felony offense involving the sale of a controlled substance specified in Health and Safety Code §§ 11054, 11055, 11056, 11057, or 11058; or (5) Any lesser - included offense of the above. (d) Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Penal Code §§ 11225 through 11235 or any similar provisions of law in a jurisdiction outside the state of California. (e) Been required to register under the provisions of Penal Code Section 290. 6 Ordinance Number C. The Director shall notify the applicant in writing of the results of the background check. An approved background check shall be valid for the term of two years from the date of such notice. 5.45.080. Background Check Renewal A. Any person required by this Chapter to obtain background check approval shall submit an application for renewal to the Director no sooner than 60 days and no later than 45 days prior to the expiration of the previous approval. B. A renewal application must be accompanied by proof of payment of a renewal application fee established by Council resolution and the information and items required for an original application, except no additional photographs or fingerprints will be required if current versions of these are already on file with the City. C. Background check renewal applications shall be reviewed in the same manner and on the same terms as an original application. 5.45.090. Background Check Revocation A. A previously approved or renewed background check may be revoked if either: 1. One or more of the findings required to approve or renew a background check can no longer be made; or 2. The background check was approved or renewed, in whole or in part, on the basis of a material misrepresentation or omission. B. If the Director determines that grounds for revocation exist, he or she shall post a Notice of Revocation at the location of all massage establishments owned or operated by the applicant and mail a copy of the notice by certified mail and regular mail, postage prepaid, addressed to the applicant at the address that appear on the latest application. The Notice of Revocation shall state the basis for revocation and include a copy of this Section. The applicant may submit to the City Clerk a request for a hearing not later than 10 days of the date of the Notice of Revocation. The request must be made in writing. If the applicant fails to request a hearing within 10 days of the date of the Notice of Revocation, the revocation shall be final. C. If the applicant submits a timely request for a hearing, the Director shall schedule the hearing to occur not later than 25 days after receiving the request. Notice of the time and place of the hearing shall be given to the applicant by personal service or via certified mail and regular 7 Ordinance Number mail, postage prepaid, at least 15 days in advance of the date set for the hearing. D. The Director shall conduct the hearing and receive oral testimony and other evidence. The Director shall not be bound by the statutory rules of evidence in the conduct of the hearing, except that hearsay evidence may not be the sole basis for not revoking background check approval. E. The Director shall make his or her determination based upon the evidence presented in the record of the hearing and within 15 days of the conclusion of the hearing. The decision shall be in writing and shall contain written findings of fact and the Director's conclusions. The Director's decision shall be served upon the applicant by personal service or via certified and regular mail, postage prepaid sent to the address of the applicant contained in the application. The decision shall be effective upon personal service or, if service is by mail, then 2 business days following deposit with the United States Postal Service. 5.45.100. Appeals A. Any decision by the Director to deny or revoke background check approval or renewal may be appealed by the applicant in accordance with this Section. The appeal must be filed in writing with the City Clerk not later than 10 days following the date of the notice of the determination. The written appeal must specify the basis for the appeal and the action requested. If no such appeal is timely filed, the decision of the Director shall be final. B. If the applicant submits a timely written appeal, the City Manager shall schedule a hearing on the appeal to occur not later than 25 days after receiving the appeal. Notice of the time and place of the hearing shall be given to the applicant by personal service or via certified mail and regular mail, postage prepaid, at least 15 days in advance of the date set for the hearing. C. The hearing on the appeal shall be de novo. The City Manager, or his or her designee, shall act as the Hearing Officer and shall receive oral testimony and other evidence. The Hearing Officer shall not be bound by the statutory rules of evidence in the conduct of the hearing, except that hearsay evidence may not be the sole basis for revoking background check approval. D. The Hearing Officer shall make his or her determination based upon the evidence presented in the record of the hearing and within 15 days of the conclusion of the hearing. The decision shall be in writing and shall contain written findings of fact and his or her conclusions. The Ordinance Number Hearing Officer's decision shall be served upon the appellant by personal service or via certified and regular mail, postage prepaid sent to the address of the applicant contained in the application. The Hearing Officer's decision shall be effective upon personal service or, if service is by mail, then 2 business days following deposit with the United States Postal Service. The decision shall be final and conclusive and shall not be appealable to the City Council. 5.45.110. Massage Establishment Operating Requirements Each massage establishment must comply with the following operational requirements in addition to any other applicable rules or regulations under federal, state, or local law. A. The California Massage Therapy Council Certificate and photographs for each person providing massage services at the massage establishment must be displayed prominently on the premises in a location that can be readily viewed by customers or City representatives. B. A list of all persons providing massage services at the establishment, including each person's full true name and other names used, photograph, and certificate from the California Massage Therapy Council must be provided to the Director. Any changes to the persons providing massage services must be reported to the Director within 10 working days of such change. C. A list of the services provided to the public and the prices and minimum lengths for each must be available to the public in a conspicuous location on the premises. D. Each massage establishment must keep a written record of the date and hour of each massage, the name and address of each customer, the name of the state certified massage professional administering the massage and the type of massage administered. The records must be maintained for a period of 2 years. Only those officials who are charged with enforcement of this Chapter shall inspect these records and no information shall be used for any purpose other than enforcement of this Chapter. No massage establishment owner or employee shall utilize the records in any manner unrelated to enforcement of this Chapter. E. Each massage establishment must be equipped at all times with an adequate supply of clean, sanitary towels, coverings, and linens. Clean towels, coverings, and linens must be stored in cabinets. Towels and linens must not be used on more than one customer or client, unless they have first been laundered and disinfected. Disposable towels and coverings must not be used on more than one customer or client. Soiled 9 Ordinance Number linens and paper towels must be deposited in separate, approved receptacles. F. Adequate ventilation and lighting must be provided throughout the premises. Ventilation must be in accordance with Uniform Building Code Section 1105. Lighting must be in accordance with National Electric Code Article 220; and at least one artificial light of not less than 40 watts must be operative in each room or enclosure designated for massage. G. At least one separate wash basin, providing soap or detergent and hot and cold running water, must be provided at all times for the use of employees* Such basin shall be located within or as close as practicable to the area devoted to performing of massage services. Sanitary towels shall be provided at each basin. H. Each room or area in which massage is practiced must have a table designed and manufactured for medical or massage uses. No mattresses or beds are allowed. Massage tables must be covered with pads made of durable washable plastic or other waterproof material acceptable to the Health Officer. All wet heat rooms, dry heat rooms, steam rooms, vapor rooms, showers, bathrooms, cabinet rooms, and pools must be thoroughly cleaned and disinfected with a disinfectant approved by the Health Department as often as needed, but not less than once each day the premises are open. Bathtubs must be thoroughly cleaned with disinfectant approved by the Health Department after each use J. The walls, ceilings, floors, and other physical facilities of the massage establishment must be maintained in good repair and in a dean and sanitary condition at all times. K. Instruments utilized in performing massage must not be used on more than one customer unless they have been properly sterilized between uses. Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage must be provided on the premises. L. Two or more customers may be provided massage services in a single room only if a state certified massage professional is present in the room at all times with the customers. No persons other than those receiving a massage, parents or guardians of a minor who is receiving a massage, and those administering a massage shall enter or remain within a room where a massage is being given takes place. M. No person shall engage in any of the following sexual activities on the premises of the massage establishment: fondling or other 10 Ordinance Number erotic touching of specified anatomical areas; sex acts including, without limitation, intercourse, oral copulation, or sodomy; or masturbation. N. No owner, employee, or independent contractor of a massage establishment shall expose his or her specified anatomical areas in the presence of any customer or guest or make intentional physical contact with the specified anatomical areas of any customer or guest. 0. Each customer's genitals must be fully covered at all times. No person shall massage the genitals of any customer. No person shall massage any female customer whose breasts are not covered by a sheet or other opaque clothing. No person shall massage any female customer's breasts. P. All employees must be dressed in clean, opaque outer garments covering the body from knee to neck, excepting hands and arms, at all times while on the premises. Q. Each employee must be provided individual lockers on the premises of the massage establishment. R. No person shall enter, be, or remain in any part of a massage establishment while in the possession of, consuming or using alcoholic beverages or controlled substances, except pursuant to a prescription for medication. The owner, operator, responsible managing employee, or manager must not allow any person in violation of this subsection to enter or remain upon the premises. S. No massage establishment shall operate as a school of massage or use the same facilities as those of a school of massage. 1. No massage establishment shall place, publish or distribute, or so direct or permit, any advertising matter that depicts any specified anatomical areas. U. All exterior doors shall remain unlocked during business hours from the interior side except when no staff is available to ensure the security of clients and massage staff who are behind closed doors. 5.45.120. Inspection of Massage Establishments A. Prior to first operating a massage establishment, the owner or operator must: (1) notify and cause the Health Officer to inspect the premises to ensure compliance with all applicable health laws and issue a report; and (2) submit a copy of the report to Director. B. The Health Officer and every person authorized pursuant to this Code to enforce this Chapter shall each have the right to periodically 11 Ordinance Number enter and inspect any massage establishment for the purpose of ensuring compliance with all applicable laws and regulations." Section 2. Any person who has a valid, current City—issued massage technician permit as of the date that this Ordinance is adopted shall be deemed to be a State Certified Massage Professional for purposes of the regulations enacted by this Ordinance until June 30, 2014 and so long as he or she otherwise complies with all provisions of the regulations enacted by this Ordinance that apply to the practice of massage and operation of massage establishments. No City—issued massage technician permit shall be valid or recognized after June 30, 2014. Section 3. Table 11.2.10.010 of the Seal Beach Municipal Code is hereby amended as follows: ---.• ' - '-'a• :..:,. --''' ai, '-1.':,-::1;•;,, '..:''.?' .': :.-Zy- (Continued) TABLE :11 2 10 pi,`,:,;',;,...;,,:i;.,.5.,,,,•,,,,..-„ '...ciMOti0 ' . USE REGULATIONS WINIERCIAANIIi',Anixbi.0 DISTRICTS ' ., „ ' L,C iRMD Fits MSSP : •, • :, SC 'r .•:_ . GC Additional ' Regulations .Commercial Use types..*(Cortinue '' -'': ' .- Automobile Service Stations/Vehicle Service and Repair, Minor -- -- — C C See Section 11.4.05.035 Automobile Washing -- -- -- Large Vehicle Sales, Services and Rental -- -- -- -- A Bakery L4 -- L-4 -4 Banks and Other Financial Institutions With Drive- Through Facilities See Section 11.4.05.050 Automated Teller Machines (ATMs) A A A A See Section 11.4.05.030 Building Materials and Services -- -- _ C Business Services P P L-2, L-3 P Commercial Recreation 12 Ordinance Number El. r. 10(Cotitititie EAEpX.ILA1,IONS,i4.pQMWRcjAg;,,NaMIX:EQ,U ttki Cbmmercial Use Types' (Continu Large-scale LCIRMD -- - MSSP - . GC f 'Additional " Regulations * Cbmmercial Use Types' (Continu Large-scale -- -- -- Sma -scale -- -- _ — — L-2, L PC PC See Chapte 5.45, Macsege 3-G Eating and Drinking Establishments Bars -- -- C Coffee House/ Dessert Shop __ -- P; L-5; L-6 P P Restaurants, Fast Food -- - - -- C C See Section 11.4.05.050 Restaurants, Full Service — -- P, C P, C P, C See Section 11.4.05.015 Restaurants, Limited Service __ __ P P P See Section 11.4.05.015 Restaurants, Take Out Only — -- P A A With Drive- 'Through Facilities -- -- -- C C See Section 11.4.05.050 With Outdoor Eating Areas — -- A, C A, C A, C See Section 11.4.05.090 DaY-S-taa/S-Pa _ _ G G _ -» , , . Extended Hour Business C -- C See Section 11.4.05.055 Food and Beverage Sales Catering Services -- -- -- P Convenience Market -- -- __ P, C See Section 11.4.05.015 General Market -- -- P, C P, C P, C See Section 13 Ordinance Number , U,SEIIREPUPATIPN;CPIVIMEI3CIALANRNIXED4LlsEDIsTRicTs?:' 7:-.:33,',:-;40:-,:--,,V :- TAgAt'-',4v OiL,:',. ',...■ t ;' '.1' s '31kR.Y4'r,'?', ] - .., , . LC/RMD PP, . ... , MSSP i, SC ,'.' . GC -Adchttonal - Regulations. Commercial Use Type&,(Cantinued).:-.:"..,:! L 11.4,05.015 Liquor Stores -- See Section 11.4.05.070 Funeral Parlors and Mortuaries Horne improvement Sales and Services _ -- -- c See Sections 11.4.05.090 and 1'1.4.05.140 Hotels and Motels -- — -- -- C Kennel -- -- -- C C Kiosks -- A A See Section 11.4.05.065 Laboratories -- P L-2, L-3 P P Maintenance and Repair Services P -- -- P P Massage Establishment P P L-2, L-3 P p See Chapter 5.45, Massage G and Massage Establishments Offices, Business and Professional P P L-2, L-3 P P Walk-in Clientele P P L-2, L-3 P P Offices, Medical and Dental P P L-2, L-3 P P Parking Facilities, Commercial See Chapter 11.4.20 Personal Improvement Services L---2 P Massage, A A L 2, L- PA PA See Chapter —Aooessory . - ' 3-A - - , - - Personal Services P P P P P 14 Ordinance Number ' "'"1- :',::,--' . ...- -: :',h;',,„s-sr:,,,,'*':',,-.':•;'?---"-':, ;Ai.::,',.,,,,,.,.;3,,,,,,--$: ,4, -- LE :It 2io:06-(Ciliiiiiiiip' 7.,::. USEREGULATIONS " - - , MERtigcANOTIVIIX.EI:57U. g'p TR: 4: --;..;ii,C":,"PV, =`-' , LC/RMD . , . PO MSSP : 7.'. -SC GC - Addil I one! Regitlation ' Commercial Use Types (Continued) A A L 2, L A PA Sce Chapter 3 A Retail Sales P -- P P P See Section 11.4.05,090 Large Format -- -- -- P P See Section 11.4.05.140 Tattoo Establishments -- -- -- C See Chapter 11.4.65 Theaters -- -- C C :Other Applicable Use Regulations Accessory Use See Section 11.4.05.010: Accessory Business Uses and Activities Nonconforming Use See Chapter 11.4.40: Nonconforming Uses, Structures, and Lots Temporary Use See Chapter 11.5.25: Director Determinations _ Perrnitted if an existing use; new uses are prohibited. See Chapter 11.4.40: Nonconforming Uses, Structures, and Lots L-2 Not a owed on the ground floor along Main Street without a Conditional Use Permit; allowed on side streets as a permitted use L - If on the ground floor along Main Street permitted if an existing use; new uses are prohibited. See Chapter 11.4.40: Nonconforming Uses, Structures, and Lots L-4 Bakery production sold at retail on premise L-5 Permitted use if less than 1,000 square feet and iess than 10 seats L-6 Minor Use Permit required if 1,000 square feet or more and 10 seats or more Section 4. Section 11,6.05.010 of the Municipal Code is hereby amended by the addition of a definition of "Massage Establishment" to read as follows: "Massaqe Establishment: any establishment having a fixed place of business where any person engages in, conducts, or carries on, or so 15 Ordinance Number permits, the commercial practice of massage. See also Chapter 5.45, Massage and Massage Establishments." Section 5. The definition of "Personal Services" in Section 11.6.05.010 of the Municipal Code is hereby amended as follows: "Personal Services: establishments providing non- medical services to individuals as a primary use. Examples of these uses include: • barber and beauty shops • clothing rental • dry cleaning pick -up stores with limited equipment • home electronics and small appliance repair • Laundromats (self- service laundries) • mas age (licensed, therapeutic, non sexual) • personal fitness training • pet grooming with no boarding • shoe repair shops • tailors • tanning salons These uses may also include accessory retail sales of products related to the services provided." Section 6. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this ordinance or any part thereof is for any reason held to be invalid, such invalidity shall not affect the validity of the remaining portions of this ordinance or any part hereof. The City Council of the City of Seal Beach 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 declared invalid. Section 7. The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same or a summary thereof to be published and posted in the manner required by law. PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal Beach at a meeting thereof held on the th day of , 2013. Gary Miller Mayor 16 ATTEST: APPROVED AS TO FORM Linda Devine City Clerk STATE OF CALIFORNIA } COUNTY OF ORANGE } SS CITY OF SEAL BEACH } Quinn M. Barrow City Attorney I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the foregoing Ordinance was introduced for first reading at a regular meeting held on the th day of , 2013 and was passed, approved and adopted by the City Council at a regular meeting held on the th day of , 2013 by the following . vote: AYES: Council Members NOES: Council Members ABSENT: Council Members ABSTAIN: Council Members and do hereby further certify that Ordinance Number has been published pursuant to the Seal Beach City Charter and Resolution Number 2836. Linda Devine City Clerk 17 EXHIBIT C" City of Seal Beach — Planning Commission June 5, 2013 Chair Massa-Lavitt called the regular meeting of the Planning Commission to order at 7:00 p.m. in the City Council Chambers and Commissioner Sloan led the Salute to the Flag. ROLL CALL Present: Chair Massa-Lavitt; Commissioners: Goldberg, Campbell, Sloan Absent: Commissioner Cummings Staff Present: Jim Basham, Director of Community Development Jerry Olivera, Senior Planner Crystal Landavazo, Assistant Planner Steven Flower, Assistant City Attorney Tina Knapp, Deputy City Clerk APPROVAL OF AGENDA With no objections, the Chair so ordered the approval of the agenda as presented. ORAL COMMUNICATIONS Chair Massa-Lavitt opened oral communications. Speaker(s): Seth Eaker, Seal Beach Chamber of Commerce, spoke about local governmental control and the 2013 Educate to Develop and Grow the Economy (EDGE) business seminar series. There were no other speakers — Chair Massa-Lavitt declared oral communications closed. CONSENT CALENDAR Campbell moved, second by Sloan, to approve the recommended actions on the consent calendar, as presented. AYES: Goldberg, Campbell, Massa-Lavitt, Sloan NOES: None ABSENT: Cummings Motion Carried Approve Planning Commission Meeting Minutes of May 1, 2013. SCHEDULED MATTERS No items at this time. Page 2 — Planning Commission 06/05/13 PUBLIC HEARINGS 2. Municipal Code Amendment (MCA) 13-6 [Citywide] Subject: Municipal Code Amendment (MCA) 13-6 regarding Massage. Recommendation: That the Planning Commission hold a public hearing regarding MCA 13-6 and after considering all evidence and testimony presented, adopt the draft resolution recommending approval of MCA 13-6 to the City Council. The Director of Community Development provided the staff report for this item. Chair Massa-Lavitt opened the public hearing. Speakers: There were five speakers — each sought clarification and answers to various aspects of the MCA. There were no other speakers — Chair Massa-Lavitt declared the public hearing closed. The Commission discussed this item and determined various changes need to be made to clarify and enhance the MCA. To gather additional information from the public, Chair Massa-Lavitt reopened the public hearing. Speakers: There were two speakers — each provided additional information for the Commission's discussion. There were no other speakers — Chair Massa-Lavitt declared the public hearing closed. Campbell moved, second by Goldberg, to adopt Resolution 13-6 recommending approval of Municipal Code Amendment 13-6 to the City Council with changes as directed by the Commission. AYES: Goldberg, Campbell, Massa-Lavitt, Sloan NOES: None ABSENT: Cummings Motion Carried The Assistant City Attorney advised that this item will now be considered by the City Council. DIRECTOR'S REPORT The Director of Community Development advised that the California Department of Housing and Community Development (HCD) reviewed the City's 2013-2021 Housing Element and had minor changes. Further processing of the City's 2013- 2021 Housing Element is being considered by the City Council. COMMISSION CONCERNS The Director of Community Development indicated that he has no update on the Request for Proposal process for the space at the end of the Seal Beach Pier. Commissioner Campbell stated concerns about a letter to the editor published in the "Sun" newspaper on May 30, 2013. The letter mistakenly attributed the writer of letter as Campbell and it was not. A retraction will be printed in the same paper in the June 6, 2013 edition. Page 3 — Planning Commission 06/05/13 ADJOURNMENT With no objections, Chair Massa-Lavitt adjourned the Planning Commission meeting at 8:24 p.m. Approved: Attest: f4 Tr. Deputy City Cler Chair Deputy City Clerk