HomeMy WebLinkAboutOrdinance 1928 (Massage Moratorium; Urgency)CLERK'S CERTIFICATE
I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, and Ex -Officio Clerk of the
Council of said City, do hereby certify that the foregoing:
ORDINANCE NO. 1928
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
ADOPTED AS AN URGENCY MEASURE IMPOSING A TEMPORARY
MORATORIUM ON THE ESTABLISHMENT AND OPERATIONS OF NEW
MASSAGE ESTABLISHMENTS WITHIN THE CITY OF SAN RAFAEL
is a true and correct copy of an Ordinance of said City, and was introduced at a REGULAR
meeting of the City Council of the City of San Rafael, held on the 5th day of January, 2015; and
passed and adopted as an Urgency Ordinance of said City at a REGULAR meeting of the City
Council of said City, held on the 5th day of January, 2015, by the following vote, to wit:
AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
WITNESS my hand and the official
Seal of the City of San Rafael this
26th day of January 2015
ESTHER C. BEIRNE
City Clerk
ORDINANCE NO. 1928
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN
RAFAEL ADOPTED AS AN URGENCY MEASURE IMPOSING A
TEMPORARY MORATORIUM ON THE ESTABLISHMENT AND
OPERATION OF NEW MASSAGE ESTABLISHMENTS WITHIN THE
CITY OF SAN RAFAEL
THE CITY COUNCIL OF THE CITY OF SAN RAFAEL, DOES ORDAIN AS
FOLLOWS:
WHEREAS, the City Council has broad discretion pursuant to Article III, Sections 16
and 59 of the City Charter; California Constitution Article XI, Section 5; and the general law of
the state, including but not limited to the California Planning and Zoning Law (Gov. Code
§§65000 et sect.), to legislate for public purposes and for the general welfare, including but not
limited to matters of public health and safety; and
WHEREAS, since the 1970's, California Government Code section 51030 has
authorized California cities and counties to adopt ordinances to regulate the business of massage
through a licensing process, and pursuant to such authority, the City of San Rafael historically
has imposed various regulations on massage and/or bodywork offices or establishments
(hereafter "massage establishments") operating within the City. Those regulations are currently
codified as Chapter 10.90 of the San Rafael Municipal Code entitled "Massage Therapy"; and
WHEREAS, the City regulates the permitted uses of real property within the City
pursuant to the provisions of its zoning ordinance, codified in San Rafael Municipal Code Title
14 ("the Zoning Ordinance"), and pursuant to such authority the City has for many years also
regulated the uses of real property within the City for the operation of massage establishments;
and
WHEREAS, in 2008 the State Legislature adopted Senate Bill 731, the Massage Therapy
Act, establishing a new statutory scheme for a voluntary certification program for massage
professionals that would entitle them to rely on a uniform statewide set of occupational
regulations and that would, for massage establishments where all the massage practitioners are so
certified, prohibit cities from imposing special zoning and land use requirements not applicable
to other personal and professional services; and
WHEREAS, since 2010, the City has been regulating massage professionals and
massage establishments in compliance with the Massage Therapy Act; and
WHEREAS, the State Legislature recently adopted and the Governor signed Assembly
Bill 1147, which became effective on January 1, 2015 and amended the Massage Therapy Act to
once again permit cities to use their land use powers to regulate massage establishments
differently than other personal or professional services establishments located within their
jurisdictions; and
WHEREAS, the City regularly receives complaints from members of the public about
the growth in the number of massage establishments within the City, including complaints of
their over -concentration and adverse impacts in the Downtown area; and
WHEREAS, pursuant to Government Code section 65858, in order to protect the public
health, safety or welfare, the City Council may, by an affirmative vote of at least four-fifths (415)
of its members, and without following the procedures otherwise required prior to the adoption or
amendment of a zoning ordinance, adopt an interim urgency ordinance to prohibit uses that may
be in conflict with a contemplated general plan or zoning proposal that the City is studying or
intends to study within a reasonable time; and
WHEREAS, due to the significant changes in State law in recent years and the restored
powers of the City to impose land use regulations on massage establishments under Assembly
Bill 1147, the City Council finds that it is timely and important for City staff to undertake a
comprehensive study of current massage establishment regulations, and the City's options for
improving the effectiveness of those regulations; and
WHEREAS, the establishment and operation of new massage establishments within the
City prior to completion of such a study and possible adoption of new or amended land use
regulations governing massage establishments, creates a current and immediate threat to the
public safety, health, and welfare, in that such operations threaten to cause adverse impacts to
surrounding residents and businesses, including impacts on or related to over -concentration,
available parking, traffic, noise, outdoor lighting, sanitation, and property values; and
WHEREAS, for the reasons stated above, the San Rafael City Council finds that it is
appropriate and necessary to adopt a temporary moratorium on the establishment of new
massage establishments within the City. The temporary moratorium will allow the City Staff to
undertake a comprehensive study to (1) determine the number and location of existing massage
establishments within the City; (2) review and analyze the provisions of the Zoning Ordinance
and other laws and regulations applicable to massage establishments; (3) study and research
options for alternative land use regulations; and (4) draft any recommended new or amended
land use regulations governing massage establishments for consideration by the City Council;
and
WHEREAS, the City Council hereby finds that it can be seen with certainty that there is
no possibility that the adoption and implementation of this temporary moratorium ordinance may
have a significant effect on the environment, since this ordinance does not authorize construction
or installation of any facilities and, in fact, imposes greater restrictions on such construction and
installation in order to protect the public health, safety and general welfare. This ordinance is
therefore exempt from the environmental review requirements of the California Environmental
Quality Act (CEQA) pursuant to Section 15061(b)(3) of Title 14 of the California Code of
Regulations;
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NOW, THEREFORE, the City Council of the City of San Rafael does hereby ordain as
follows:
DIVISION 1. -- FINDINGS.
Pursuant to the provisions of Government code section 65858, the City Council of the
City of San Rafael hereby finds as follows:
The above recitals are true and correct and are incorporated herein by reference.
2. Based on the recitals above, the City Council hereby finds and determines that the
establishment or commencement of operation of massage establishments within the City prior to
the City completing a study of the existing and potential impacts and regulation of such use
would pose a current and immediate threat to the public peace, health, safety, and welfare, and
that a temporary moratorium on the establishment of such uses is therefore necessary.
3. This ordinance is necessary as an urgency measure to preserve the public peace,
health or safety.
DIVISION 2. -- IMPOSITION OF MORATORIUM.
1. During the term of this temporary moratorium, no new massage establishment, as
defined in section 14.03.030 of the Zoning Ordinance, including but not limited to massage
establishments operated as home occupations, shall be opened and/or operated in any zoning
district within the City. Provided however, that if a massage establishment is doing business at a
location within the City in compliance with the applicable provisions of the current Zoning
Ordinance and San Rafael Municipal Code Chapter 10.90 prior to adoption of this Ordinance, the
moratorium shall not prevent that business from continuing to operate at that location, or prohibit
transfer of the ownership of the business at that location; and shall not prevent the City from
approving the establishment and operation of a massage establishment for which a completed
application has been submitted under San Rafael Municipal Code Chapter 10.90 prior to the
adoption of this Ordinance.
2. City staff is directed forthwith to undertake a comprehensive study to (1)
determine the number and location of existing massage establishments within the City; (2)
review and analyze the provisions of the Zoning Ordinance and other laws and regulations
applicable to massage establishments; (3) study and research options for alternative land use
regulations; and (4) draft any recommended new or amended land use regulations governing
massage establishments for consideration by the City Council.
3. Violations of this temporary moratorium may be charged as infractions or
misdemeanors as set forth in Section 1.16.060 of the San Rafael Municipal Code, may be the
subject of administrative citations or administrative orders as set forth in Chapters 1.44 or 1.46 of
the San Rafael Municipal Code, or may be deemed a public nuisance and may be enforced by an
action for injunction or civil penalties as provided in Section 1.42.020, or by any other remedy
authorized by law.
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4. The San Rafael City Manager is hereby authorized to direct all City Departments,
including the Code Enforcement Division of the Community Development Department, Police
Department and the City Attorney to facilitate compliance with the purpose and intent of this
temporary moratorium using the enforcement powers described in the preceding paragraph.
DIVISION 3.
Pursuant to the pertinent provisions of Government Code section 65858, this interim
urgency ordinance shall expire and shall be of no further force and effect forty-five (45) days
from and after the date of its adoption; provided however, that after notice and public hearing,
the City Council may, upon an affirmative vote of at least four-fifths of its members, extend this
interim ordinance as provided in section 65858, for an additional period of time, not to exceed a
total extension period of twenty-two (22) months and fifteen (15) days.
DIVISION 4.
If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason,
held to be invalid, such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council hereby declares that it would have adopted the ordinance and each
section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses, or phrases are declared invalid.
DIVISION 5.
This ordinance is hereby declared to be an urgency measure and shall become effective
immediately upon adoption by an affirmative vote of at least four-fifths (4/5) of the members of
the City Council pursuant to Government Code section 65858. The City Clerk is directed to
publish forthwith a copy of this Ordinance, together with the names of those Councilmembers
voting for or against same, in a newspaper of general circulation published and circulated in the
City of San Rafael, County of Marin, State of California. I
O. PIkLIYIPS,
ATTEST:
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ESTHER C. BEIRNE, City Clerk
I, ESTHER C. BEIRNE, City Clerk of the City of San Rafael, certify that the foregoing
Ordinance was passed by the City Council of the City of San Rafael, California, by a vote of at
least four-fifths (4/5) of the members thereof, at a regular meeting held on Monday, the 5th day
of January, 2015, by the following vote, to wit:
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AYES: Councilmembers: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: Councilmembers: None
ABSENT: Councilmembers: None
115-�
ESTHER C. BEIRNE, City Clerk