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HomeMy WebLinkAboutCC Minutes 2010-10-18SRCC Minutes (Regular) 10/18/2010 Page 553 IN THE COUNCIL CHAMBER OF THE CITY OF SAN RAFAEL, MONDAY, OCTOBER 18, 2010 AT 8:00 P.M. Regular Meeting: San Rafael City Council Also Present: Ken Nordhoff, City Manager Robert F. Epstein, City Attorney Esther C. Beirne, City Clerk Members of the public may speak on Agenda items. OPEN SESSION — COUNCIL CHAMBERS — 7:00 PM Mayor Boro announced Closed Session item. CLOSED SESSION — CONFERENCE ROOM 201 — 7:00 PM Public Employment — Government Code Section 54957 Title: City Manager Present: Albert J. Boro, Mayor Damon Connolly, Vice -Mayor Greg Brockbank, Councilmember Barbara Heller, Councilmember Marc Levine, Councilmember Absent: None City Attorney Robert Epstein reported that on a motion by Councilmember Heller, seconded by Councilmember Levine, the City Council unanimously voted to appoint Assistant City Manager Jim Schutz as City Manager on an interim basis during the period in which the City Council would be engaging in the process of searching for and appointing a permanent City Manager. The salary for that position would be annualized at $169,903, paid bi-weekly for a period of approximately six months. Staff would agendize a formal resolution at the City Council meeting of November 1, 2010 to memorialize this action. ORAL COMMUNICATIONS OF AN URGENCY NATURE: 8:10 PM THIS PORTION OF THE MEETING IS RESERVED FOR PERSONS DESIRING TO ADDRESS THE CITY COUNCIL ON URGENCY MATTERS NOT ON THE AGENDA. PRESENTATIONS ARE GENERALLY LIMITED TO TWO MINUTES. ALL MATTERS REQUIRING A RESPONSE WILL BE REFERRED TO STAFF FOR REPLY IN WRITING AND/OR PLACED ON A FUTURE MEETING AGENDA. PLEASE CONTACT THE CITY CLERK BEFORE MEETING. Unconstitutional Wars: - File Rachel Bell and John Jenkel read from material regarding unconstitutional wars. Councilmember Heller moved and Councilmember Levine seconded, to approve the Consent Calendar as follows: CONSENT CALENDAR: RECOMMENDED ACTION: ALL MATTERS ON THE CONSENT CALENDAR ARE TO BE APPROVAL OF THE FOLLOWING ACTION: APPROVED BY ONE MOTION, UNLESS SEPARATE ACTION IS REQUIRED ON A PARTICULAR ITEM: Approval of Minutes of Regular Meeting of Minutes approved as submitted. October 4, 2010 (CC) Resolution Authorizing Execution of Contract with RESOLUTION NO. 13067 Bob Murray & Associates for Executive RESOLUTION AUTHORIZING A Recruitment of City Manager (MS) — File 4-10-364 PROFESSIONAL SERVICES AGREEMENT WITH BOB MURRAY & ASSOCIATES TO CONDUCT A CITY MANAGER EXECUTIVE RECRUITMENT SEARCH SRCC Minutes (Regular) 10/18/2010 4. Monthly Investment Report for Month Ending September, 2010 (Fin) — File 8-18 x 8-9 Resolution Authorizing the Director of Public Works to Amend Local Measure A Funding Agreement #2007-012 Between the Transportation Authority of Marin (TAM) and the City of San Rafael by Adding $414,048 for Fiscal Year 2010-2011 (PW) — File 170 x 9-3-40 SRCC Minutes (Regular) 10/18/2010 Page 554 Accepted Monthly Investment Report for month ending September, 2010, as presented. RESOLUTION NO. 13068 RESOLUTION AUTHORIZING THE DIRECTOR OF PUBLIC WORKS TO AMEND LOCAL MEASURE A FUNDING AGREEMENT #2007- 012 BETWEEN THE TRANSPORTATION AUTHORITY OF MARIN (TAM) AND THE CITY OF SAN RAFAEL BY ADDING $414,048 FOR FISCAL YEAR 2010-2011 Resolution Authorizing Temporary Closure of Pt. RESOLUTION NO. 13069 San Pedro Road from Riviera Drive to Biscayne RESOLUTION AUTHORIZING TEMPORARY Drive for the Marin County Triathlon October 31, CLOSURE OF PT. SAN PEDRO ROAD FROM 2010 from 6:30 a.m. to 1:00 p.m. (RA) — File 11-19 RIVIERA DRIVE TO BISCAYNE DRIVE FOR MARIN COUNTY TRIATHLON ON OCTOBER 31, 2010 FROM 6:30 AM TO 1:00 PM AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Levine & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None OTHER AGENDA ITEMS: CONSIDERATION OF PROPOSED LIBRARY STAFFING REORGANIZATION TO IMPLEMENT SPECIAL LIBRARY PARCEL TAX -BASED IMPROVEMENTS (LIB) — FILE 9-3-61 x 9-4 Library Director David Dodd stated this was a plan to utilize funds approved by San Rafael voters to support the San Rafael Public Library. He thanked library staff members, members of the Special Library Parcel Tax Committee (Measure `C' Oversight Committee), members of the Library Board of Trustees and the Friends of the Library without whom Measure C would not have been possible. Mr. Dodd stated the main object of the plan was to provide more hours of open library service. Currently, the library was open 48 hours per week downtown, and 30 hours per week at Pickleweed and, while the schedule was good, more hours could be utilized. Staff had been working very hard to maintain the current number of open hours. A total of 2.11 positions, plus an additional position had been eliminated; however, as promised by Measure C, this plan was intended to restore and maintain library services. To maintain current services, Mr. Dodd noted the 10% loss in the current year - $241,000 — and in the prior year the loss of 2.11 positions, a $180,000 cut. The Finance Director projected that Measure C would generate approximately $820,000 annually of usable tax moneys. Mr. Dodd reported that his proposal included adding sufficient positions to return to pre -2004 levels at the downtown library — 59 hours per week. This would include an additional Thursday evening, other evenings until 9:00 p.m. and adding Sundays from 1:00 p.m. — 5:00 p.m. Five hours would be added to the Pickleweed schedule. Mr. Dodd reported that staff had looked at returning the materials budget up to a reasonable level. He noted the strong support from the Friends of the Library who had provided $25,000 annually to purchase best sellers and other support in terms of book purchasing — a major funds drive in 2004/2005 raised approximately $100,000. Under this plan the Friends of the Library would return to supporting programming, especially children's. Mr. Dodd stated that the table on page 4 of the staff report encapsulated spending in each area and on the recommendation of the City Manager looked at the percentage breakout. Personnel accounted for 71%, materials 16%, with capital savings at 13%. Mr. Dodd explained that the measure was written in such a way that the money could be used for any library operation, including staffing, services, materials and facilities — facilities being a big goal of library supporters. Noting the parcel tax was not set up to replace the library, rather to restore and maintain services, he considered it responsible to begin to fund a savings account for the building itself; therefore, over the seven years of this tax the goal was to accumulate $1 million in this savings account. Mr. Dodd commented that although the $1 million would not fund a new library, estimated to cost approximately $30 million, it could fund a lot of planning, design, state grant requirements, needs assessment study, etc. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 555 Additionally, staff anticipated having $250,000 available over the seven years to fund other eventualities with the building. Noting the City Council was instrumental in the replacement of the HVAC system, windows and painting, etc., by approving a $1.3 million investment, Mr. Dodd stated staff wanted to continue to make the library as usable and comfortable as possible until a new library could be constructed. An estimate of $90,000 was received two years ago for carpeting; therefore, $250,000 could be utilized very quickly. Mr. Dodd outlined the proposed open hours for the downtown library, at the request of Councilmember Heller. Monday 1:00 — 9:00 P.M. Friday 10:00 a.m. — 5:00 p.m. Saturday 10:00 a.m. — 5:00 p.m. Tuesday 10:00 a.m. — 9:00 p.m. Sunday 1:00 P.M. — 5:00 P.M. Wednesday 10:00 a.m. — 9:00 p.m. Thursday 10:00 a.m. — 9:00 p.m. Expressing thanks Councilmember Heller stated the library was a great benefit to the community. Mr. Dodd thanked Councilmember Heller for her support over the years. Councilmember Connolly stated that at the outset of the Measure C campaign the focus was on returning hours to previous levels and he confirmed the proposal would achieve pre -2004 levels. With regard to the proposed staffing increases to coincide with the increased hours, he noted staff identified a proposed Assistant Library Director position at a salary of $161,000, which without further explanation appeared high. Mr. Dodd explained this was the total package, which included benefits estimated at 40% of salary. His original estimate was a base salary of $90,000; however a salary survey conducted recently by Human Resources estimated the base salary at $113,000. Prior to 2004 an Assistant Library Director provided a needed service in a middle management position and until recently, Kay Noguchi (retired) was de facto Assistant Library Director. Mr. Dodd noted that an upcoming retirement to be replaced at a lower level would help to ameliorate this expenditure. Mr. Dodd confirmed that the salaries identified in the staff report were fully loaded at the highest step. He noted salary savings in the first year, because of hiring for only six months, would kick-start the fund for capital replacement, perhaps to approximately $300,000. Councilmember Connolly noted interest was expressed concerning services directed at school children and coordination with schools and Mr. Dodd indicated planning was underway. Apologizing for the incomplete sentence in the staff report, Mr. Dodd explained the thought was to ensure every school child in San Rafael had a library card, through outreach and cooperation with the schools. Modeled on the Salinas Public Library, Sean Prendiville, Library Board Member, conducted outreach with the Salinas Library Director on how the process was carried out. Mr. Dodd commented that other issues discussed in the staff report, such as online homework assistance and an increased number of databases, would be useless if students did not have access; these could all be accessed through library cards. He reported that staff was researching a grant to fund a joint position to work directly with the schools to conduct outreach, teaching teachers on the use of these resources. Mr. Dodd confirmed the current plan did not fund such a position; therefore, a partnership with the schools was necessary. Councilmember Connolly stated he was pleased the capital facilities issue was included, albeit it was not directly on point with Measure C money. His sense was that the library would be returned to a more than adequate staffing level, materials were adequate and the staff was outstanding. Based on comparable cities he believed the library underperformed in the area of the actual facility, noting overcrowding of books, particularly in the children's section. Pleased with the funding proposal over time, Councilmember Connolly indicated he would like to continue to see a proactive strategy concerning the facility. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 556 Mr. Dodd commented that the Library had a very active and growing Library Foundation which was dedicated to making this a fast reality. Councilmember Levine stated it could be helpful to have a seven-year budget to understand how the money was being spent and how responsive the City was to the public's support of library services and a capital fund. He was pleased at the possibility of setting a significant sum of money aside for a future facility and that the City was taking a first step in recognizing its importance to the community. Councilmember Levine expressed gratitude to the community for their support of their library and expressed enthusiasm at the possibility of every child having a library card, and he thanked Mr. Dodd for his leadership. Councilmember Brockbank thanked Mr. Dodd for his leadership and outstanding work and apologized for sometimes taking him and his staff for granted because of having come to expect the great work they routinely carry out. He expressed thanks to the library staff and the citizens of San Rafael for their support. Regarding the capital fund, Mayor Boro clarified that one of the chapters in the ordinance called this out as a goal; therefore, it was in full compliance. He suggested this item be agendized for the quarterly meeting with the two school districts. Mr. Nordhoff confirmed it was on the agenda. Thanking Mr. Dodd for his work, Mayor Boro stated the legacy of the library would continue for many years as a result of Measure C. Direction was provided by the City Council to memorialize the proposal in a formal action by the City Council at their meeting of November 1, 2010. PROPOSAL FOR CANAL COMMUNITY GARDEN PROJECT ON CITY PROPERTY LOCATED AT BELLAM BLVD. AND WINDWARD WAY (CS) — FILE 9-3-65 Community Services Director Carlene McCart reported that staff had an exemplary partnership to propose to accomplish a long-standing goal to create a community garden for the Canal neighborhood. A similar facility at Pickleweed Park had been usurped by the renovation and expansion of the community center; therefore, since 2004, no opportunity existed for Canal residents or greater San Rafael to participate in community garden activities. Ms. McCart stated that in 2007, a collaborative group of agencies with a shared mission of health and wellness for Marin County residents started to meet to consider how to promote and work with the residents' desire for a garden. Joining them later in the process was Trust for Public Land, who became a partner in the collaborative funded by a grant from Marin Community Foundation to research and develop an initial phase of the community garden project. The next step was to secure a site, at which time further fundraising, design and construction implementation plans would be developed. Indicating the City currently did not have the resources or staffing capacity to build or manage a community garden, Ms. McCart reported that staff was drawing on successful experiences of partnerships to meet this need. Ms. McCart recalled that almost twenty years ago the Bocce Federation presented a similar proposal, and this relationship had been very successful and productive. Similarly, Grupo Lonatese funded, designed and built the Lonatese Garden. If approved, Ms. McCart stated the community garden project would require a Use Agreement for City property with the managing partner, Canal Alliance, who had offered their services in the ultimate management of the garden. She noted Canal Alliance's long and successful record of attracting funding for sustainable programs and most recently, they had been very successful in bringing gardening projects to apartment and multi -unit dwelling complexes in the Canal neighborhood. Should the proposal be acceptable, Ms. McCart stated that negotiations would be entered into for the agreement which would have clear deliverables and which the City Council could review and approve prior to execution. This was a collaborative effort with nine non-profit organizations and entities listed in the proposal as active partners, each coming with a piece of program or development expertise that would strengthen the facility effort, and many of whom belonged to the Healthy Marin Partnership. Ms. McCart reported that the site, at Bellam Boulevard and Windward Way, was chosen over the very few available in the Canal neighborhood. This property fit the use so well in that it had sufficient space to serve a large capacity of gardeners and interests — educational programs as well as individual gardening efforts. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 557 Parking was available on the street and with no adjacent residential neighbors it was hoped the one adjacent business, Picante Restaurant, would enjoy a profitable relationship with the community garden. Ms. McCart stated that the site was within walking distance for most residents of the Canal, Spinnaker and Baypoint Lagoons. Staff reviewed the plans with the Police Department and took their comments seriously concerning making the facility safe and secure for public use. The landscaping would provide an enhancement to the neighborhood with a nice entryway into Baypoint and Spinnaker neighborhoods. Ms. McCart reported that the timeline included in the proposal was an indication of the sequence of development. The actual time was contingent upon the momentum of the project; however, staff was heartened that it could be attainable in a short period of time. She explained that it was a proposal for a public facility providing local benefit, operated by a local agency resulting in a symbiotic relationship with those who wanted to actively garden and who were ready to help produce programs that would enhance the knowledge of ecology, healthy lifestyles and public property. Ms. McCart reported that the proposal was reviewed by the Park and Recreation Commission at two separate meetings over a period of several months. The Commission was unanimous in their approval of the concept and was clear that if the plan needed to be altered due to funding or shifting priorities, that it be reviewed once again by the Park and Recreation Commission if not by the City Council. Indicating the fiscal impact would not concern the City budget, Ms. McCart stated staff believed the business model included in the proposal would be sustainable through small participant fees and grant funding. Next steps were to negotiate the agreement and return to the Planning Commission for a use permit, and possibly a building permit. Ms. McCart introduced Meghan Pecaut representing The Trust for Public Land. Meahan Pecaut explained that The Trust for Public Land was a national non-profit organization dealing with land conservation and building parks and gardens in urban areas. They were contacted a few years ago by a number of partners, some of whom were in attendance this evening: representative from Supervisor's Kinsey's office, Tom Wilson, Canal Alliance, Community Garden manager and representatives from the Healthy Marin Partnership, including Pat Kendall, Teri Rockas and Cio Hernandez, who were very invested in making sure the project happened in the Canal community. The community outreach process undertaken included a series of community meetings and working closely with the collaborative partners to ensure the space being designed reflected the needs of the community. Having held two community meetings in March and April, 2010, Ms. Pecaut reported good attendance at both with translation provided in both Spanish and Vietnamese. At the first meeting a variety of different options were presented for the site with the community contributing feedback, and subsequently a plan was generated. Two different sized beds were agreed upon — 3'x 10' and 6'x 10'— with a total of 102 beds in the garden, some of which were at ground level and some countertop height. Ms. Pecaut indicated that the garden would be surrounded by a 10 -foot landscape buffer containing native plants with a transparent fence. Parking was easily accessible on the street, together with bicycle parking, and a bike path directly across the street connected through the community. Because the community wanted this to be a gathering place Ms. Pecaut stated the focal point was an outdoor classroom; therefore, the garden would serve the 102 families with beds as well as organizations such as the Master Gardeners or Canal Alliance who could host classes. Canal Alliance was actively working with a gardener teaching organic gardening techniques; therefore as well as growing healthy food, participants could learn educational and job skills. Ms. Pecaut stated that The Trust for Public Land conducts the community outreach, secures funding and goes through the construction document process all the way through construction, gifting the project back to the entity concerned, and in this case, the City would have an agreement with the managing partner to take over the facility. Ms. Pecaut reported that the Trust for Public Land was approximately one quarter way through fundraising and had received several significant gifts. Fundraising should be completed by the spring of 2011 when they hoped to break ground, with total completion by the end of the summer. Regarding the organic education component, Councilmember Levine inquired whether the entire garden would be organic or pesticide -free. Confirming the garden would be organic, Ms. Pecaut noted that because of the adjacent home for those with allergies and sensitivities to environmental contaminants it was important it be organic. The Marin SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 558 Master Gardeners and Canal Alliance had committed to teaching classes offering education on these issues. Councilmember Connolly commented that the inclusion of the education component was outstanding and he questioned whether part of the garden would be allocated to schools. Ms. Pecaut stated the nearby elementary school already had a community garden with an active program and the manager was excited about sharing her knowledge. Currently, allocations were on a first-come, first -serve basis; however, further meetings would be scheduled with Canal Alliance, Master Gardeners and the community to plan the management model, at which time allocations to schools could be considered. She noted Picante restaurant expressed interest in a plot. Councilmember Heller inquired as to the cost for use of a plot. Ms. Pecaut indicated that a 3' x 10' plot was estimated to cost $40, and $60 for the 6' x 10' annually, to cover water and insurance fees and a small savings account — management to be covered by Canal Alliance through grants. She confirmed that Marin Sanitary Service offered to donate garbage collection services. Noting community gardens were complex to manage and expensive to build, Councilmember Brockbank inquired whether eventually staff time could be reduced to make the garden more sustainable by having the plots pay for the operation. Indicating there were different management models for community gardens across the country, some based off volunteers, some paid, Ms. Pecaunt stated that, since this was a newer garden that had issues in the past, to start off on the right foot it made sense to have a paid managing partner. Should there be an active board in the future who strongly believed they could manage the operation, and the City concurred, that issue could be pursued. Councilmember Brockbank commented that ideally, should the operation run smoothly for a few years, a volunteer model could evolve; however, he believed the management role was the correct choice at this time. Ms. Pecaut believed this was something the community could pursue in a few years, if the model was working successfully. Realizing $40 or $60 annually to some could be a lot of money, Councilmember Brockbank inquired whether it was possible for those for whom this represented a financial burden to pay the fee through work, produce, etc. Also since funds would need to be raised from the community, he inquired whether some type of community appreciation or rewards system was built in to thank sponsors or whether such things had been done previously with community gardens. Reporting that all of these had been done before with community gardens, Ms. Pecaut stated that in order to put together the proposal and ensure costs were covered upfront, these values were assigned; however, further work needed to be done with the community to ascertain whether this made sense. She noted that typically, paying a nominal fee resulted in a sense of ownership and taking better care of the garden; however, in hardship cases she believed people could volunteer instead. David Escobar, Supervisor Steve Kinsey's office, expressed his appreciation for the time and effort given the project and he recognized former Councilmember Cyr Miller for his participation in helping the process through. Tom Wilson, Canal Alliance, stated it was a true community process to get the project going. Many people had been involved which added to the strength of the project and Canal Alliance was committed to making this a gem of not just the Canal, but the City. He stated Canal Alliance was glad to provide the management of the garden and did not consider the $40 and $60 fees would present hardships; they could work with people to pay over time if necessary. Looking forward to the negotiations he expressed the hope that the project would go forward and he thanked the City Council for their work. Pat Kendall, Healthy Marin Partnership, submitted a paper to the City Council entitled "Thinking Upstream —Working Together to Improve the Health of Marin County." She commented that Healthy Marin Partnership worked for fifteen years to arrive at this point and was on the precipice of making a difference SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 559 about the health of the community. Stating life was all about going upstream, from the document she identified childhood obesity, at the bottom of the stream, as one of the main diseases children died from. Proceeding upstream covered Community Education, Networks and Coalitions, Organizational Practices to arrive at Policy and Legislation —the position of the City Council. Ms. Kendall stated this evening presented an opportunity for the City Council to create an opportunity to go upstream and ensure healthier lives at an earlier stage. She noted that at the North Bay Children's Center children snacked on snow peas and strawberries and learned that their comfort foods were vegetables and fruits. Believing gardens brought the community together she reported having discussed health issues with approximately 300 people in Marin County, many in San Rafael, and hearing stories, particularly from Canal residents, concerning how different they felt eating healthy foods; albeit unaffordable for many. She stated the City Council was playing a major part in the heath of the community by approving the garden. Jonathan Frieman reported having learned of the project some months ago from Kathleen Russell and Jessica Parkes, and subsequently working on fundraising, and he considered the project an excellent one. Aware the project had been in the making for several years and of Supervisor Kinsey's support, Mayor Boro stated this was another positive opportunity in the Canal neighborhood for people to learn, gather and exchange ideas. Congratulating all concerned, he thanked Megan Pecaut and the Trust for Public Land for bringing everyone to the table, together with Mr. Wilson, Canal Community Alliance. Councilmember Connolly moved and Councilmember Brockbank seconded to approve the staff recommendation: Approve in concept the proposal for the Canal Community Garden, subject to City Council approval of a lease/agreement to be negotiated by City staff with the Canal Alliance for the use of the property at Bellam Boulevard and Windward Way for that purpose. AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Levine & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None PUBLIC HEARINGS: PROJECT: JEWELL STREET, 20 BLOCK; (AKA 22 JEWELL STREET RESIDENCE) (CD) REQUEST FOR AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT AND EXCEPTION FOR NEW 2,645 GROSS SQUARE -FOOT RESIDENCE ON A HILLSIDE AND FLAG LOT WITH AN EXCEPTION TO THE HILLSIDE OVERLAY DISTRICT NATURAL STATE DEVELOPMENT STANDARD: APN: 014- 072-29: R7.5 -H ZONE; CASE NUMBER: ED07-092, EX10-004 — MONTECITO NEIGHBORHOOD (CD) — FILE 10-5 Mayor Boro declared the public hearing opened. Senior Planner Kraig Tambornini stated this concerned a design review permit for a new single-family house on a hillside flag lot in the Montecito neighborhood. The property was an old lot vacant for some time in an existing established neighborhood. A flag lot, it had a fairly constrained access stem leading up to the buildable portion of the lot on the side of a hill up-sloping to another older established neighborhood uphill with larger lots. Design review was required for the following reasons: • Review of new homes are required on flag lots to ensure neighborhood compatibility; and • Hillside site with a slope over 25%. Reporting that the project began in 2007, Mr. Tambornini stated that the process had taken a while for reasons which included the fact that the original owner had lost the property back to the lender. It went before the Design Review Board (DRB) on three occasions. The first two involved significant public controversy and interest and the DRB made recommendations on the design in response to some neighborhood concerns. The applicant worked on the design and returned with a new design that included a request for an exception to the hillside standards for natural state. As could be seen in the report, the natural state criteria established a lot of limitations, restrictions and regulations intended to develop homes compatible with the hillside setting. Those regulations addressed three important elements: SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 560 Limits the amount of building and construction footprint to maintain most of the site in a natural condition; Limits the size of the home for manageability based on the size of the site; and Limits the height of the house from natural grade. Mr. Tambornini reported that at the third review by the DRB the applicant made the request for a major exception to the natural state requirement, primarily: • To respond to concerns that, although the house appeared to be finely designed, it could be improved if stepped back further up the hillside; however, this was prohibited due to the natural state limitations. The DRB recommended that the applicant might be agreeable to softening that regulation if it resulted in a better home that did not achieve so much visual mass potentially looking down on the existing homes. • That it would allow access to the rear yard from the main house, as well as outside the house by providing an external stairway along the side of the home. The DRB determined that the exception request was warranted because it did not impact the visual setting but allowed the house to be broken a bit more up the hillside. Mr. Tambornini reported that the DRB recommendation moved on to the Planning Commission where some unresolved neighborhood concerns remained, primarily relating to the three-level home to be created by this design. In considering the neighbors' concerns, the Planning Commission also looked at the design and exception request and concluded that the home was responding to the goals of the Hillside Design Guidelines by proposing appropriate colors and stepping with the hillside, and they supported an exception to the natural state requirement in order to support the design. Mr. Tambornini reported that the exception request requires approval by the City Council from the recommendation of the Planning Commission and Design Review Board. The project design also includes two minor exceptions: Allow a driveway slope of 25%, the absolute maximum. It was determined there was no feasible way to obtain a shallower driveway slope. The project architect worked with the City Engineering division to obtain a 25% driveway slope that would have a 12'/2% slope transition at the base to allow cars to come down the steep driveway and level out before entering Jewell Street. The Fire Department also reviewed the plan in depth, considered the constraints and accepted that this driveway was the best condition available. It was understood, however, that an emergency vehicle could not reach the site and would have to serve from the street. While an ambulance could drive some distance up the driveway it would not be possible to reach the house. • Tandem parking to reduce grading - The turnaround area of the driveway had been exhaustively reviewed by the Public Works Department and the design was made to allow cars to back out and make a two-point turn, considered the best solution given the constraints. Indicating that staff recommended approval, Mr. Tambornini stated the resolution outlined the findings and conditions of approval considered appropriate and recommended by the Planning Commission. He distributed a materials color pallet identifying the earth -tone colors proposed, most importantly the dark roof color. Michael Heckmann, architect for the project, stated he had worked long and hard with Mr. Tambornini, the Design Review Board and Planning Commission and was confident this was the correct solution for this property, given the restraints of its size and some of the zoning issues. The parking restriction was a challenge because the narrowness of Jewell Street required more off-street parking, typical of larger sized streets. However, providing additional parking resulted in the house being a little taller than expected Mr. Heckmann reported having met with the Montecito area Homeowners Association and in working with them and the Design Review Board and Planning Commission, they were confident with the solution. Noting the structure was of modest size, he stated a residual effect of providing tandem parking was the additional circulation space for cars to exit face down the driveway rather than backing down, and the colors and materials would be appropriate for the neighborhood. There being no further comment from the audience, Mayor Boro closed the public hearing. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 561 With respect to emergency vehicles being able to access the residence, Mayor Boro requested clarification on whether this was possible due to the steepness of the grade. Mr. Tambornini explained that primarily this was because of the narrowness of the access stem. While an ambulance could drive up it would have to back down because the driveway narrowed down from 11 -feet in width to 9 — 10 -feet — it was very narrow at the top of the slope meeting the parking deck. He stated the Fire Inspector indicated that most likely an ambulance would pull up, serve the house and back down. Mayor Boro inquired whether homes built on similar lots had this type of problem. Mr. Tambornini explained this was the first of a more current development. Older homes were built with much steeper driveways and without these standards. He confirmed this was not the only home in San Rafael with such a problem. Councilmember Connolly inquired as to the extent the proposed three-level designed home was in -keeping with the character of the neighborhood. Mr. Tambornini stated that the general consensus of the Design Review Board and Planning Commission was that it was in -keeping with the neighborhood because there were other three-level homes in the City and neighborhood. Explaining that often hillside homes were three -levels, he stated this was encouraged so that the homes stepped up the hillside. He noted a 2'/z story home directly below on Jewell Street, one house away from this proposed home. Mayor Boro inquired whether the home was being built for someone. Mr. Heckmann stated that to his knowledge currently there was not a private owner intending to build the project. Mayor Boro stated it was most important that once building commenced, the project was completed. Mr. Heckmann stated the project would provide needed housing in an area that could use it. Councilmember Heller moved and Councilmember Levine seconded, to adopt the resolution: RESOLUTION NO. 13070 — RESOLUTION APPROVING AN ENVIRONMENTAL AND DESIGN REVIEW PERMIT (ED07-092) AND EXCEPTION (EX10-004) FOR A NEW HILLSIDE RESIDENCE EXCEEDING THE NATURAL STATE STANDARD LOCATED ON A VACANT FLAG LOT AT 22 JEWELL STREET (APN: 014-072-29) AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Levine & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 10. INTRODUCTION OF AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL ADDING NEW CHAPTER 10.90 TO THE SAN RAFAEL MUNICIPAL CODE RELATING TO MASSAGE THERAPY PRACTITIONERS AND ESTABLISHMENTS (CA) — FILE 9-10-3 x 9-3-30 x 9-3-16 Mayor Boro declared the public hearing opened. Deputy City Attorney II Lisa Goldfien stated the ordinance would make substantial changes to the City's existing regulations of massage therapists and massage establishments. In developing the ordinance, staff intended to deal with two issues that had arisen over the last several years: The circumstance that San Rafael Police Department had not had very good success in enforcing current regulations which were adopted in 2001 and provided for permit processes, and a 100 -hour education requirement with the intention to ensure practitioners' qualifications were adequate. Since the adoption of the ordinance, the Police Department had conducted several investigations and certain sting operations, and while they had some success at prosecuting individual practitioners who were found to be practicing illegitimate practices, they had not been able to use the City's current massage ordinance to close down the businesses that were not legitimate massage businesses, some of which were known to be operating as fronts for prostitution and other illicit activities. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 562 • In 2008, state legislature adopted a new law, SB 731, which provided that effective 2009, a private organization would be established California Massage Therapy Council (CAMTC) with the task of developing and implementing a process for certification of practitioners statewide. Legislation provided that this certification would be voluntary, but that any person who obtained the certification could practice anywhere in the state without having to obtain the local city permit. Because the intention under the legislation was to unify the statewide standards, the law provided that anyone with this certification could not be required to obtain a local permit. Given that circumstance, the City would not be in a position to enforce current permit procedures for practitioners who became certified and staff undertook to develop new regulations to address both issues. Ms. Goldfien outlined four elements of the proposed ordinance: • The ordinance would move the massage regulations from Title 8 - Morals and Conduct — to Title 10 which regulates businesses. Staff believed this was a more appropriate location for the comprehensive regulation of massage businesses. • There would be a significant change to the regulations of individual practitioners. Staff proposed that under the new ordinance, it would become mandatory in San Rafael to obtain the state CAMTC certification. Although voluntary, there was nothing in the law which precluded the City from making it mandatory within City limits. Ms. Goldfien explained there were several reasons to pursue this path: ❑ Practitioners who obtained certification would be exempt from local permits. In effect the City would be operating under two different permit systems by keeping the local permit in place; ❑ Certification requirements for the CAMTC certification were more stringent than the City's current requirements, particularly the education requirements. The minimum requirement for certification at the CAMTC is 250 hours and one certification requires the minimum of 500 hours, as opposed to the City's requirement of 100 hours. ❑ Staff believed (also the position of the CAMTC), that having the statewide plan of certification was a way of standardizing the qualifications and standards of massage therapists throughout the state, so that the public was aware of the qualifications and standards that the particular therapist had met. ❑ It would streamline the process within the City, eliminating a separate City permit and relying solely on the certification process — only one process for practitioners. Ms. Goldfien stated staff strongly believed this was a beneficial development for the practitioners. It advances the profession of massage therapy in that only practitioners who obtain state certification would be allowed to advertise themselves as certified massage therapists or practitioners Ms. Goldfien explained that the CAMTC certification process was somewhat similar to the process currently used in San Rafael in that it requires a substantial background check based on fingerprint submittal by the applicant. It also provides for verification of educational requirements; the Massage Therapy Council developed an extensive procedure for investigating and verifying the schools being cited by applicants and verifying the criteria used in obtaining credentials. Although the City would not issue its own permit, Ms. Goldfien explained that individual practitioners would be required to register with the City to enable tracking of the practitioners practicing in San Rafael and the location of these practices. Proof of certification would be required and subsequently, the City would issue a certificate for that process, for which no fee would be required. Ms. Goldfien explained that SB 731 imposes several limitations on what cities could do in terms of regulating certified practitioners and the ordinance attempts to comply completely with the requirements, one of which was that additional permits and permit fees not be imposed on these practitioners. • Regulations of the massage establishments — The proposed ordinance would continue the existing SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 563 regulations; however, it would add a few particular new requirements staff believed would be beneficial and helpful to enforcement officers in detecting violations of the ordinance. Particularly, it was proposed to change the hours of operation from the current 5:00 a.m. — 11:00 p.m. to 7:00 a.m. — 10:00 p.m. (Ms. Goldfien corrected a statement in the staff report that they currently open at 7:00 a.m. rather than 5:00 a.m.) Provision of a waiting or reception area would also be required inside the front door of the establishment. Use of blinds or shutters that totally block the view of the street into the waiting area would be precluded, with the exception of blinds into massage rooms. Interior massage rooms to remain unlocked during business hours, massage therapists to be properly attired in opaque clothing with permits displayed on their person and t the must business display the permits of all the practitioners working at the establishment. Operators would also be required to obtain a permit. • Where all personnel at the establishment are certified by the CAMTC it was proposed to issue a certified massage establishment certificate, essentially requiring identification of the address, owner's contact information and proof of the identity and certification status of all those working at the establishment performing massage. Where massage establishments' employees were certified, but the owners or operators were not state -certified, an operator permit would be required and in addition to the other requirements, a background check would be conducted on those operators because they would not have gone through that process with the CAMTC. These requirements were in addition to the City's business license requirements. Addressing some requirements staff considered and rejected in the draft ordinance, Ms. Goldfien explained that two were related: Initially, consideration was given to maintaining the front door unlocked during business hours and the establishment to maintain an operator/receptionist on the premises to provide security for those performing massage. SB 731 precludes the City from requiring locked doors in the event no one was on the premises to provide security; therefore, staff viewed these two elements as going hand in hand. She indicated that some objections were received from practitioners to the effect that it would be overly burdensome to have an additional employee to provide security, and subsequent to further discussions with the police regulatory officer, his experience was that in carrying out inspections in plain clothes he did not have a problem gaining access to even locked establishments, and he did not believe that eliminating the requirement for unlocked front doors would hinder the City's ability to enforce the ordinance; therefore, the ordinance remained silent on whether front doors could be locked or unlocked. • Regarding the requirement initially for a special pre -permit inspection of the business, Ms. Goldfien explained that on further investigation it was determined that an inspection was already performed as part of obtaining a business license and the additional requirement for an inspection prior to issuing a permit would not accomplish anything, rather would delay issuance of the permits. Provisions in the ordinance would allow ad hoc inspections of various establishments to ensure compliance with the provisions of the ordinance. Ms. Goldfien stated that the ordinance changed the focus for enforcement of the provisions. Enforcement of the existing ordinance had been primarily through criminal prosecutions; however, it was found that the ordinance had not provided the tools to shut down businesses on the basis of acts by their practitioners. The emphasis in the proposed ordinance was changed to an administrative process, enhancing the provisions for the administrative procedures undertaken. Essentially, police officers could continue to carry out inspections; however, it should be easier to detect violations without having to prove prostitution, making it less difficult to gain evidence to prove a case of an illicit operation. This evidence would be used initially to issue warnings and administrative citations; however, in theory with numerous or egregious violations, the City permit authority could suspend or revoke the operator permit prohibiting the business to continue. The permitee would have a due process hearing before a hearing officer and if upheld, a revocation of a permit would result in a prohibition of another massage business at that location for a period of a year. This would create an obstacle to the rapid turnover of businesses between business owners as demonstrated in the past. Ms. Goldfien stated that letters received subsequent to finalizing the staff report were submitted to the City Council this evening. Lieutenant Dan Fink was in attendance and could answer enforcement questions. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 564 Regarding the prohibition of another massage parlor at that location for a one-year period, Councilmember Heller inquired whether this was legal. Explaining that essentially it was a nuisance theory, Ms. Goldfien stated the idea would be that a nuisance situation had been created on that property. Staff believed there was an adequate police power basis to place a limit on the reinstitution of that business for a limited period of time. Referring to staff's statement that the new state ordinance did not preclude San Rafael's requiring that all massage practitioners be state certified, Councilmember Brockbank inquired whether there were other professions in San Rafael for which a state certification was required. Ms. Goldfien explained that many other professions in San Rafael were only regulated at the state level, such as lawyers, doctors, accountants, engineers, etc. and massage therapy had not traditionally been regulated at state level; therefore, these regulations had been developed in each city at the local level, as authorized by the Government Code. With the advent of the state regulations San Rafael was replacing a requirement for a local permit with one for a different permit, which she believed to be better thought-out, better structured and more likely to enhance the profession. Councilmember Brockbank stated he was unaware of any other areas where the City required certain attire, front doors to be unlocked, windows to be open and visible, and while he saw the logic and was in favor of it, he questioned whether the City was on firm legal ground because of precedent that clearly allowed cities to make such regulations that had nothing to do with state regulations. Ms. Goldfien explained that the Government Code provided pretty broad discretion to regulate massage businesses. Additionally, SB 731 specifically states that cities could continue to impose reasonable requirements for the facilities, the building, health and safety, including attire, and staff believed that these regulations were well within the scope of the authority under the state law and that they were reasonably related to the purposes the City was attempting to attain with the ordinance. Referring to the first of the two community meetings in April, 2010, Councilmember Brockbank recalled the Chief of Police stating that it was difficult to carry out stings and busts because of having to put officers in that position, and even if fortunate enough to obtain good evidence, the case might not be prosecuted. He questioned whether the problem was in the District Attorney's office. Responding, Lieutenant Fink suggested that perhaps the problem was not with the District Attorney's office per se, rather more with the system in general. As a misdemeanor crime the prostitute would be cited and receive diversion and/or probation. According to the previous ordinance in the event of a conviction of a specific section of prostitution, the violator could not practice as a massage therapist in San Rafael; however, it was found that a lot of these cases were being plead out to lesser offenses which did not preclude practicing as a masseuse. The general feeling was that it was a lesser crime and while the District Attorney's office was not an obstacle to prosecution, they required a good burden of proof for such an issue. Ms. Goldfien explained that in the administrative hearing process staff was subject to a lesser burden of proof than in the case of a criminal prosecution. The evidence staff would be required to provide would not need to be quite as conclusive or compelling as in criminal court, and some of the types of requirements being added to the ordinance should serve as a basis to bring some type of administrative enforcement. Explaining the difference with attorneys, for example, in terms of state regulation, Councilmember Connolly stated that attorneys are required to pass the Bar and become licensed at the state level, whereas with massage therapists, a practitioner could apply to be certified at the state level; however, did not have to. In San Rafael however, the practitioner did have to make the application to the state for certification and he questioned whether there was legal authority to do this. Ms. Goldfien stated there was no legal authority that the City could not. Noting many other cities were doing this, she stated it had been raised with the California Massage Therapy Council, and, although they had not taken a formal position, staff had received no objections. The basic point was that the City was allowed to regulate massage at the local level and this was the mechanism of choice. Rather than creating a local process, staff was relying on an already established state process; however, it essentially was a local regulation for San Rafael and any practitioner who did not wish to be subject to these regulations could perhaps practice in Mill Valley, for example. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 565 Noting concerns raised by the community about the proliferation of establishments with neon signs, etc., Councilmember Connolly stated it was important to approach the issue intelligently and not in a way that would impede a legitimate business. Regarding situations of being over -inclusive and under -inclusive, on the over -inclusive side, referring to the ordinance, page 3 — F. Definitions - Massage — he noted the category of "bodywork" was included within the rubric of massage, and he requested clarification that this was appropriate. He gave the example of a business near his residence that advertised acupuncture, healing, spirituality and bodywork and inquired whether this establishment would be subject to this set of regulations. Ms. Goldfien explained that these terms were used interchangeably; however, of significance was the activity described under those terms. These terms were also used in the current ordinance and to some extent, staff wanted to retain the terminology because it also was used in the Zoning Ordinance. Ms. Goldfien stated it was her understanding that bodywork was a broader category perhaps than massage; however, depending on whether the establishment referred to by Councilmember Connolly was using massage as part of their practice, they would be subject to this ordinance. Councilmember Connolly suggested being careful not to include the broader category of activities not found to be part of this ordinance. Ms. Goldfien stated the City had an exemption for somatic practitioners, body workers essentially, who did not use touch. Complaints had been received that the ordinance was not refined enough in terms of describing various types of massage and bodywork; however, for purposes of practicality, staff was attempting to keep it simple. Referring to the definition of "massage establishment" Page 3 — G, "it means any business or establishment that offers.... whether at a fixed place of business or at a location designated by the patron" , and using the scenario of hiring a masseuse to provide a massage at his place of business, Councilmember Connolly inquired whether in such a situation an operator permit as a massage establishment would be required. Responding negatively, Ms. Goldfien explained the intention was that the massage therapist had to be certified and the massage establishment employing the massage therapist had to acquire an operator permit. Councilmember Connolly inquired whether the clause, "or at a location designated by the patron" might be confusing. Ms. Goldfien stated the definition was of the business or establishment and was stating that it was the business, whether it operated at fixed location or by sending out massage therapists to specific locations at the request of a patron. In terms of potentially being under -inclusive, Councilmember Connolly noted exemptions for sole proprietorships and home occupation and he questioned whether this was a loophole for easy violation of the ordinance. Indicating it was a balance, Ms. Goldfien stated staff's information was that store front establishments were not sole proprietorships, rather multi -person operations. Councilmember Connolly suggested that there now could be a lot of sole proprietorships in the store fronts. Concurring, Ms. Goldfien indicated that the situation would be monitored and perhaps changes made over time; however, the experience was that sole practitioners had not been the problem. Lt. Fink stated that the store front massage therapy studios were the problem, noting a lot of suspicious activities at those locations. The owner, being the sole practitioner, would not make any money on the storefront to pay rent since they would be the only person employed. Complaints had been received regarding homes and apartments; however, these situations could be dealt with more easily as apartment managers could evict tenants a lot more quickly for such activity. While there was more criminal authority in those areas, he did not foresee a lot of sole practitioners in the store fronts. Councilmember Connolly questioned why home occupations would be exempt. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 566 Ms. Goldfien clarified that home occupations were not exempted from the majority of the regulations in the ordinance. Exemptions were proposed from certain physical facility and operational requirements that in the opinion of staff did not make as much sense in the home occupation context and/or may be overly burdensome. For example, requirements concerning locked interior doors may not work in a home to prohibit the massage room from being locked. Ms. Goldfien stated she believed it was to allow more flexibility in how people used their homes. Councilmember Levine inquired as to the basis for the reduction in hours. Ms. Goldfien stated she was not aware of the trend throughout the state; however, in looking at the issue of hours, comments were received from the public that legitimate massage establishments would not need to operate as late as 11:00 p.m. Having evaluated a 9:00 p.m. closing, no particular basis was found, and noting Massage Envy, a large establishment, was open until 10:00 p.m. this was chosen. Regarding the neon signs that had proliferated along with the massage establishments and that these signs frequently were lit twenty-four hours continuously, Councilmember Levine inquired whether this issue could be addressed in the ordinance. Ms. Goldfien explained that the signs were already regulated under the City's sign ordinance. Some were allowed and to the extent they were not allowed after hours under that ordinance, Code Enforcement could pursue those violations; therefore, it did not make sense to include this regulation in this ordinance also. Jeffrev Gale, Marin County resident, stated that quite a few years ago he participated in a meeting involving former Chief of Police Michael Cronin dealing with this same issue. He urged the City Council to put direct legal pressure on the Marin Independent Journal for publishing advertisements for erotic massage; to pressure the publishers of all phone books in Marin County against legally allowing pages of erotic massage advertisements and prevent massage parlors from placing decals on their front doors which stated they were "protected by the California organization of Police and Sheriffs." He stated that two of the finest rated massage schools in the United States were located in Marin County, which had an estimated total of approximately 3,000 licensed massage practitioners and body workers. Mr. Gale stated that the Marin Independent Journal was being boycotted by them because they were looped together with massage parlor employees as to licensing. He stated that prostitution should never be protected unless it was legalized along with drugs and gambling and he expressed thanks to the City Council for not rushing to judgment and passing an ordinance that would not be effective and only hurt those practicing therapeutic massage. Ruben J. Rocha, San Rafael resident and licensed massage therapist, practicing privately, stated he was an instructor at Diamond Lights School in San Anselmo and the manager of BodyWise. He reported that Diamond Lights School and BodyWise had a unique relationship because BodyWise allowed Diamond Lights School to use their facilities for their student interns. Diamond Lights school teaches a level of Swedish relaxation massage and had been operating in this way since 1999 to the benefit of the community. As a legitimate massage therapist in private practice he believed the ordinance was a little burdensome; however, he would do whatever he could to support the City shutting down this illicit operation. As an instructor grooming people into therapeutic massage the fact that this would immediately be eliminated was a shame and he encouraged the City to give the situation serious consideration. Councilmember Levine inquired as to the hours of operation at BodyWise. Mr. Rocha stated BodyWise was open from 10:30 a.m. — 6:30 p.m. Beverly Mav, Chair of the California Massage Therapy Council, stated that under both Government and Business and Professions Codes, the City could mandate certification; it replaces the local mandate for the City permit. Additionally, because it was a certification act, which was a title act only, there was no definition, but all cities currently in their ordinances defined massage. She commented that the City's definition was not uncommon as for all intents and purposes, body work equaled massage. Ms. May concurred with Ms. Goldfien that off premises was under the owner and a sole proprietorship would be under the California Massage Therapy Council. Even if it were a business where everyone claimed to be independent contractors, the owner would be held responsible. Regarding hours of operation, Ms. May stated that 7:00 or 8:00 a.m. to 9:00 p.m. or 10:00 p.m. were typical in city ordinances and in legitimate massage businesses. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 567 In response to Mr. Rocha's concern, Ms. May expressed the hope that under the newly organized Bureau for Private Post -Secondary Education, they would be able to provide supervised student clinics that would address the issue. Ms. May stated that the number one concern of the CAMTC was public safety. CAMTC began issuing certifications in September, 2009 and has issued over 14,000 certifications to massage professionals to date. She applauded Ms. Goldfien and the City of San Rafael for the most thoroughly researched proposed ordinance she had seen, not only since the law had passed, but in the 23 years she had worked with local cities to prepare new ordinances. Staff had worked not only with the community, rather Ms. Goldfien had been a part of all the telephone calls of CAMTC's public policy and local government committee which had the involvement of well over 100 city attorneys and law enforcement, together with massage therapists. Although the CAMTC had no policy regarding mandating certification Ms. May stated they supported cities when they chose to mandate it, as they recognized many cities would see it as beneficial. She believed the proposed ordinance was well thought-out and addressed the issue with establishments in a very creative way, as far as having two types of permits for the certified and non -certified owners. She believed this worked well not only for the profession, the public and the City; it allowed the City to close problematic businesses without having to go through the expense of red light abatement, which was a very creative solution derived by Ms. Goldfien. Ms. May noted that if individuals were to violate the law, the CAMTC would be very active at suspending and revoking their certification. She noted that in these times of budget cuts, District Attorneys were finding it difficult to prosecute misdemeanors; however, CAMTC was able to act on officer sworn testimony and administrative citations, as the City had proposed. Bernadette Murrav, Woodland resident and CAMTC certified massage therapist, stated she was also a licensed massage therapist in Texas, which was one of 43 states requiring licensing from massage providers. She noted there were approximately 285,000 massage professionals in the United States — 200,000 were licensed and 85,000 were in areas which had not yet required state licensing. She commented that cities did not have the resources available to statewide organizations that interacted with different law enforcement agencies; however, the CAMTC conducted sting operations in schools. For three years there had been no regulation or oversight of private, vocational post -secondary schools which unfortunately had created a situation where some schools had been selling diplomas or acting as covers for human trafficking organizations and she provided a publicly available list of CAMTC Non -Accepted School Transcripts. She also provided a list of twenty-eight San Rafael massage providers that were CAMTC certified, which demonstrated that it was not onerous or burdensome to obtain certification and it also allowed any member of the public to be able to verify whether a massage professional was certified. As a certified and licensed massage therapist she encouraged people to think about the therapeutic benefits of massage and not about what it could be a cover for, and she heartily supported the ordinance. Jonathan Frieman stated he had received his massage certification in 1983 and a year later, he was certified as an Aston-Patterner - an advanced form of hands-on body work. He worked in private practice and clinics, dealing specifically with fibromyalgia and twenty-two years ago he was involved in a national effort to standardize the practice of massage. Mr. Frieman reported that his tool kit included an advanced hands-on body work of two depths and two types, a movement indication, cranial sacral therapy and Aston massage. Indicating that he did not define himself as a massage therapist and distained the term, Mr. Frieman recalled that at a recent public meeting there was fairly unanimous agreement that massage meant the use of oil on an exposed body part, and including the term bodywork pulls in so many disciplines that do not use oil, that he believed it should be removed. He noted one of the health requirements discussed the word 'invasive' and he explained that invasiveness could actually be done by hand, and was why he decided not to be a 'Rolfer' — a very invasive and painful form of massage. Mr. Frieman stated he had requested that the term 'somatic practitioner' be removed or defined more specifically as he was concerned that someone such as he who practices Aston Patterning would be entrapped or required after twenty-five years to gain certification. The staff report noted that prostitution has decreased in the last ten years and that legitimate outlets had risen. Should that be the case, this regulatory effort targets a small part of the industry and in so doing, could effectively criminalize the practice of those who call themselves massage practitioners. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 568 Listing countries where prostitution is legal, Mr. Frieman reported that Berkeley and San Francisco attempted to pass ordinances decriminalizing prostitution; however, he believed there was a difference between decriminalizing and legalization and he urged that the issue to evaluated in San Rafael. His concern was with the attempt to fix one small part of the problem by having an ordinance that was too inclusive. Having done a lot of work on this issue he expressed appreciation for the work done by staff and the feedback he received. To him the ordinance was fine except for the instances where the definitions and exceptions needed to be pinpointed as he was concerned for those individuals desiring to work in San Rafael but could be entrapped in a way that would cause them much more trouble. Fritzi Schnel stated she had been in practice in San Rafael for close to thirty years, twenty of which were in one particular office building. Prior to the 2004 ordinance update the building was not zoned for massage which on finding out presented her with the opportunity of coming forward as she was a hypnotherapist and used that license to practice for the simple reason that massage seemed to complicate everything, including where she was working. Acknowledging the relationship between the massage therapy industry and the City Council, which was open, respectful and understanding about what legitimate massage therapists do in San Rafael, Ms. Schnel stated however, they were concerned that the ordinance somehow restricted them. She believed they practice legitimately, their ethics and code of conduct were strong and exemplary and she supported the certification in the hope that it would shut down the illicit bodywork practices. Referring to page 12 — Massage Establishment Inspection — A. "The Inspector shall have the right to enter without a search or inspection warrant" Ms. Schnel inquired whether this was a legal process. Also Page 13 6. relating to posting a listing of services, she questioned whether she would be non-compliant if she performed a service not listed. Ms. Schnel requested that the City Council consider grandfathering in long -practicing massage therapists. Kathleen Cheek, certified Rolfer and registered Biodynamic Cranial Sacral therapy practitioner, stated she had been in practice for 14 years, 12 of which had been in San Rafael. She expressed concern that techniques used in their scope of practice could be considered invasive as they work inter -orally. She indicated she was a part of the redrafting group with the Police Department and they inserted the word 'bodywork' because so many had advanced degrees doing different types of structural integration, not massage, and needed some differentiation from the word massage. Generally, she indicated she was happy with the ordinance and the state certification. Jennv Franks, professional healthcare provider, thanked the City Council for bringing the issue to the table. She works in a field traditionally manned by women and she was present to comment on the remarks made about women in the helping professions. There being no further comment from the audience, Mayor Boro closed the public hearing. Indicating he supported the ordinance, Mayor Boro stated he had a lot of respect for those carrying out massage and the related therapies and this ordinance in no way was attempting to demean that or prohibit someone running a legitimate business from doing their job. The perception was that San Rafael had a problem, starting with neon lights, etc., and noting perception sometimes becomes reality, he needed to understand what specifically the ordinance was trying to prevent and how penalties would be enforced. He reported having received letters today from Steve Patterson and an Assistant District Attorney in San Francisco, who raised questions to the effect that some of the exceptions regarding sole proprietorship were a problem, and he(Mayor Boro) would like further discussion on this. Recognizing this issue was greater in San Rafael (the largest city) than in other cities and towns in Marin County, Mayor Boro stated that for illegitimate practices there should be a law in place to allow police officers to act to reduce them. While certain questions were raised no one in attendance was opposed to the ordinance as presented. They were professionals in their field and supported the work done by Ms. Goldfien. He believed there was no need for neon signs to be illuminated all night in neighborhoods as they presented an image of potential operation not expected in San Rafael. Mayor Boro requested further discussion on the steps to be taken and the penalties to be imposed for those violating the ordinance as he was interested in explaining to the community why it was effective, how it would reduce illegal prostitution in the City and how the image could be changed. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 569 Ms. Goldfien stated that the question of enforcement was a slightly different one from the question of adopting the tools to enforce. She indicated that the penalties would be established by administrative citation penalties. Specific fines were in place for violations of the code; however, the increasing level of penalty was not specified. As written, it provides discretion to the permit authority — Chief of Police, to determine whether in his opinion, the circumstances rose to the level of trying to suspend or revoke the permit, in which case the procedure was just a notice that action was taken with an opportunity to be heard The suspension could be for any length of time; however revocation was permanent with the consequent prohibition on a new business in that same establishment. While how violations would escalate was not laid out precisely, to allow for more adaptation depending on the circumstances, it could be spelled out more clearly should the City Council so choose. Mayor Boro stated he was seeking alternatives to provide to the public so that people could understand the consequences. Mr. Nordhoff stated that should the ordinance move forward he would invite the Police Department to coordinate with the City Attorneys Office to discuss the process in terms of enforcing, subsequently providing a fact sheet to the City Council on how the phasings would occur. While comments would be generalized, a sense of the steps leading up to the administrative hearing officer and ruling could be provided. Mayor Boro stated that when the ordinance was adopted, the Police Department and City Attorneys office should work together, periodically returning to the City Council with results on why the ordinance was working and if not working why not. Noting she had been to both BodyWise and Massage Envy, Councilmember Heller stated they were fine establishments; however, she had learned that student practitioners at Bodywise would be prohibited from practicing under the proposed ordinance. Indicating this was the first time the issue was raised, Ms. Goldfien stated she would like to consult with the business owner to generate a workable solution, perhaps a certain type of exemption for students. In terms of whether certain advanced forms of body work should be included, Ms. Goldfien stated that under the definition of massage it would include fields of body work that entailed hands-on therapy. She believed a lot of practitioners included in this were legitimate and ethical and staff was not attempting to distinguish between good and bad, rather regulating everyone using hands-on techniques. Staff had not been more specific about types of therapy because it had not been practical to specify each and every type of bodywork practice there is. Those using hands-on therapy were subject to the ordinance and needed to obtain the certification, and it was hoped this would not impose a particular burden on the practice. Councilmember Connolly inquired whether someone practicing body work ordinarily would be required to obtain state certification; he sensed the definition was being expanded. Ms. Goldfien stated practitioners currently were required to obtain a City permit. Councilmember Connolly questioned whether someone practicing body work in all the various forms would be incorporated within the state certification process. Indicating it was suitable for the state certification process, Ms. Goldfien stated that perhaps those therapists might not as a class, seek to obtain that certification; however, she believed they would be able to qualify with their hours of education and work experience credentials. Currently, body workers were required to obtain the local permit; therefore, this was a question of whether the City would continue to require the local permit, which includes a background check and one hundred (100) hours of education, etc., or whether the state -established standard would be used. Ms. Goldfien commented that there could be therapists working San Rafael who had chosen not to obtain any permit; however, the requirement was that anyone carrying out what was defined as massage or bodywork in the ordinance must obtain a permit. Regarding the state and local ordinances, Councilmember Heller stated she understood San Rafael had to transition to obtaining state certification for massage workers, i.e., the choice was to remain as is or transition. Ms. Goldfien explained that San Rafael had to recognize those with a CAMTC certification — they would be exempt from the local permit requirement. San Rafael could continue to have a purely local permit process SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 570 and those who wished could obtain certification from the CAMTC; however, some might choose not to and would continue to practice in San Rafael under a local permit. San Rafael was choosing to eliminate the discrepancy between the two permit processes and go with that established by the state. Noting Ms. Schnel's remarks that it would be difficult for her to document the training she received a long time ago from other schools, Councilmember Levine encouraged her to apply for state certification and if for some reason this did not work out a way could be found to piece together some type of record of that work. Likewise with BodyWise, he believed the long-time practitioners and students going through a program were supporting the culture of therapy desired and supported in San Rafael. Ms. Goldfien stated there were some alternative ways to obtain certification, including practitioners currently holding a City permit; they could make a somewhat lesser showing to the CAMTC, as would practitioners licensed in another state. She believed the CAMTC wanted to make it possible for legitimate practitioners to become certified and had worked with individuals encountering problems with certification. Councilmember Levine expressed appreciation for how staff described the administrative procedure to deal with illegal activity where it was more difficult to use the criminal justice system. Discretion could be used to revoke a business license given the seriousness of what was taking place, which provided a lot of leeway. Also the hearing and appeal process would provide a way to adjudicate the matter as fairly as possible. Regarding invasive procedures, Ms. Goldfien explained the term in the ordinance referred to using mechanical implements. Although it was not an exclusive list, she believed the intent was not to capture physical movement as part of the therapy and she doubted that would be a problem for a practitioner. Regarding being penalized for omitting to mention some type of therapy, Ms. Goldfien stated it should be remembered that this ordinance would be enforced in a common sense way. The ordinance would be enforced according to the intent, which was not to entrap practitioners because of minor omissions in their application, etc. With regard to the warrant procedure, Ms. Goldfien explained this was added at the request of the Fire Inspector as essentially, the theory was that by obtaining a permit for a business within San Rafael, consent was being given to a search. In reality, she believed inspectors would knock on the door before entry during normal business hours. Should the ordinance be passed to print, Mayor Boro inquired as to the best way to have questions answered prior to taking final action. On the question of students, Mr. Epstein believed more work could be necessary. The idea was presented concerning having some provision for students under supervision of a certified practitioner which perhaps needed clarification with the massage therapy community; therefore, the ordinance should not be acted upon at this meeting as the change would be more substantive than grammatical. Mr. Epstein suggested returning the issue at a future City Council meeting, perhaps on November 1, 2010, so that staff could provide both the cogent description regarding the objectives of the ordinance and its enforcement, together with minor revisions to address the issues framed this evening. Councilmember Heller moved and Councilmember Connolly seconded, to continue the item to a date to be determined by the City Attorney's office. AYES: COUNCILMEMBERS: Brockbank, Connolly, Heller, Levine & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None CITY MANAGER'S REPORT: 11. Pacific Gas & Electric: - File 9-3-11 x 9-1 Indicating he had distributed copies of material from the Town of San Anselmo to the California Public Utilities Commission (CPUC) and Pacific Gas & Electricity (PG&E) related to Smart Meters Mr. Nordhoff stated that having had the benefit of additional work by both Mr. Brown and Mr. Epstein, staff remained emphatic about not seeing anything necessarily productive emanating from a public meeting. However, should there be specific concerns the City Council would like staff to address, letters could be drafted to PG&E and the CPUC, similar to those written by the Town of San Anselmo. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 571 Responding to Councilmember Brockbank's remark that this was not an agendized item this evening, Mr Nordhoff indicated he was seeking direction on whether letters should be addressed to PG&E or the CPUC, whatever the pleasure of the Council; he believed there was nothing to agendize and was merely seeking direction on whether to send a letter. Councilmember Brockbank indicated he concurred on sending a letter. Councilmember Connolly stated that ultimately it could be decided that the best course of action was a letter; however, the San Anselmo's letter was premised on two public hearings. Since then he was aware of more public input requesting the City to provide a forum for the public to be heard. It was the main issue at a neighborhood meeting he attended last week and questioned whether the City Council should consider allowing some type of forum, subsequently shaping a response duly noting the City Attorney's remarks on one option, which he believed had been foreclosed legally. Mr. Nordhoff noted a methodology was in place to schedule study sessions or add items to City Council agendas and, while staff would take Council's direction, he believed such a hearing would set up expectations which could not be fulfilled. Mayor Boro stated his reaction to the public forum format was that expectations would be raised where nothing could be done. He indicated he would be much more in favor of a forum on the PG&E gas line near the community center. Councilmember Connolly believed Smart Meters was one of the top issues in the minds of people currently and the question he was hearing was why San Rafael was the only city not taking this issue up. While the range of options could be limited, he believed the City Council had the responsibility to listen to constituents. Councilmember Heller stated it was her understanding that Marin Clean Energy intended to carry out an investigation and hold such a forum. Noting there had been a couple of public sessions through Marin Clean Energy's Technical Committee, Councilmember Connolly stated they were attempting to set up meetings between PG&E to discuss options. In the meantime, he was hearing much concern on the issue from San Rafael residents. Noting PG&E had held several public forums, Councilmember Heller inquired if the concerned residents had attended and addressed PG&E directly. While the City could register a complaint and pass comments on, Mayor Boro explained that the authority rested with the CPUC and not the City of San Rafael. He did not want to mislead the public into thinking that the City Council could change anything. He reported that, bar one, he had not received any comments on the issue. Councilmember Brockbank suggested scheduling a study session to consider options and provide direction to staff. Councilmember Levine stated the advice he would give PG&E was antithetical to the Marin Clean Energy Business Model which was to give people an opportunity to opt in not out and let early adopters take Smart Meters. Given the unknowns, he was unsure whether the health issues were a danger and he believed it was easier to write a letter indicating that the best course of action for PG&E was to institute an opt in option. Councilmember Connolly believed this supported the point of needing a hearing or study session. Mr. Nordhoff explained that study sessions were intentionally scheduled before a City Council meeting and consisted largely of topics staff had a great deal of familiarity with, took direction on, etc. The Smart Meter issue would have to be considered in the form of educating citizens and could consume a number of hours. Such a meeting would need to be structured and publicized to include many points of view. He suggested an alternative could be to form a City Council sub -committee to host a public meeting and making suggestions to the entire City Council. With regard to San Anselmo, Mr. Epstein reported that several public meetings took place where a substantial amount of time was devoted to the topic — one where PG&E had the floor for the most part and SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 572 another where a group from Bolinas made a presentation, together with Fairfax residents, including Councilmember Bragmann. As directed, staff returned with a proposed ordinance for a moratorium; however, it was accompanied by the Town Attorney's conclusion that enforceability of the ordinance would be unlawful and on a 2:2 vote, the ordinance was not introduced. Councilmember Heller noted the San Francisco Water Department had been using such meters for quite a while without seeing any health problems and she believed the Marin Municipal Water District (MMWD) would install meters in 2011. Mr. Nordhoff believed that the MMWD may already have similar technology deployed; however, not to the level of use proposed with Smart Meters. Councilmember Heller reported reading that the CPUC had stated they could find no health reasons not to continue allowing PG&E to install Smart Meters. Mr. Nordhoff confirmed that the CPUC had their independent study conducted and released last month and based on the findings they had nothing to pursue. Councilmember Heller expressed concern about holding a meeting with the public without being able to take any action. Councilmember Connolly agreed that while some issues were unknown they were areas of concern the City Council should be educated on, and which the public were interested in being heard on. Mayor Boro suggested hosting a forum in the Council Chambers with presentations by PG&E, the CPUC, etc.; however, he believed the City Council had no ability to do anything regarding Smart Meters. Commenting that such a meeting already took place in Marin, Councilmember Levine stated that, should the public wish to hear this information at a forum hosted by San Rafael, perhaps it could be worthwhile; however, he did not feel the pressure to hold a meeting because of the inability to act. He believed the situation with gas lines mattered more to the public than the paranoia concerning Smart Meters, real or imagined. In the event a forum was scheduled, Councilmember Heller concurred with Mayor Boro's idea of having the City Council seated in the audience. Councilmember Connolly stated that Belvedere or San Anselmo taking up an issue did not preclude San Rafael from similar action. He had received a lot of input from the public in San Rafael requesting more information on the issue and wishing to express their concerns and he believed a public forum would serve this purpose. Mr. Nordhoff announced that he and Interim City Manager Jim Schutz would be attending the monthly Marin Managers meeting on Thursday, October 28, 2010 and would be glad to garner information on who had hosted these types of events, who they included, how they went, what had come of such a meeting, and try to shape what a community forum might look like. This information could be presented to the City Council for direction. Mayor Boro again inquired as to what would be accomplished from such a meeting and what the City Council could do with information provided. Mr. Nordhoff clarified that a forum would provide an opportunity for various parties to discuss the issues, concerns, program, etc., and the City Council could make a decision whether anything needed to be done based on information put forward. While he supported an informal meeting, Councilmember Brockbank stated he favored the idea of a sub- committee holding a forum and returning to the City Council with a recommendation. He also favored Councilmember Levine's idea of an opt -in or opt -out option. Councilmember Levine stated he would support a letter for an opt -in program. Councilmember Connolly suggested holding a hearing to find out the options available. SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 573 After discussion, Mr. Nordhoff stated that he would report back to the City Council after his meeting with the Marin Managers on October 28, 2010. Councilmember Connolly confirmed that it was everyday people who were discussing the issue and he confirmed he attended the Sun Valley neighborhood meeting. COUNCILMEMBER REPORTS / REQUESTS FOR FUTURE AGENDA ITEMS: (including AB 1234 Reports on Meetings and Conferences Attended at City Expense) 12. Bav Area Forum: - File 9-1 Councilmember Brockbank announced that Joel Hirsch would hold an Education Forum on Monday, October 25, 2010 in the City Council Chambers. Marin Transit: - File 9-1 Councilmember Heller distributed Route Reference Cards for Marin Transit. Leadership Institute: - File 9-1 Councilmember Levine reported that the Chamber of Commerce Leadership Institute, in which he was a participant, would hold their mock City Council Meeting on November 18, 2010, and with the topic being Target, he would recuse himself of any role in this session. There being no further business, Mayor Boro adjourned the City Council meeting at 11:30 p.m. ESTHER C. BEIRNE, City Clerk APPROVED THIS DAY OF , 2010 ALBERT J. BORO, Mayor SRCC Minutes (Regular) 10/18/2010 SRCC Minutes (Regular) 10/18/2010 Page 574 SRCC Minutes (Regular) 10/18/2010