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HomeMy WebLinkAboutOrdinance 1929 (Massage Moratorium Extension; 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. 1929 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL ADOPTED AS AN URGENCY MEASURE MAKING FINDINGS AND FURTHER EXTENDING 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 passed and adopted as an Urgency Ordinance at a REGULAR meeting of the City Council of said City, held on the 17th day of February, 2015, by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey, Gamblin, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: Colin ABSENT: COUNCILMEMBERS: None WITNESS my hand and the official Seal of the City of San Rafael this 24th day of February, 2015 ESTHER C. BEIRNE City Clerk ORDINANCE NO. 1929 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL ADOPTED AS AN URGENCY MEASURE MAKING FINDINGS AND FURTHER EXTENDING 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 seq.), 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 1 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 (4/5) 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, on January 5, 2015 the San Rafael City Council adopted Ordinance No. 1928, a 45 -day moratorium on the establishment of new massage establishments within the City. The purpose of the moratorium is to 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 finds that additional time is required for City staff to thoroughly study the issues related to regulation of massage establishments; to draft any appropriate amendments to the City's Municipal Code for consideration by the City Council, and that therefore the temporary moratorium adopted in Ordinance No. 1928 should be extended; and WHEREAS, as required pursuant to Government Code section 65858, the City Council has received and accepted a report from City staff on the measures taken to address the conditions which led to the adoption of Ordinance No. 1928; and WHEREAS, the City Council hereby finds that it can be seen with certainty that there is no possibility that the extension of the temporary moratorium ordinance may have a significant 2 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. 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: 1. 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. -- EXTENSION OF MORATORIUM. 1. The temporary moratorium adopted by City of San Rafael Ordinance No. 1928 is hereby extended to and including December 31, 2015. 2. 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 was 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 Ordinance No. 1928, 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, or prohibit a sole proprietorship from moving to a new location; and shall not prevent the City from approving the establishment and operation of a massage establishment for which a completed application was submitted under San Rafael Municipal Code Chapter 10.90 prior to the adoption of Ordinance No. 1928. 3. City staff is directed to continue its 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 3 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. 4. 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. 5. 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 after December 31, 2015; 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 Ordinance No. 1928 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 circulationpished and circulated in the City of San Rafael, County of Marin, State of California. n ) GARI O. PHILLIPS, Mayor 4 ATTEST: 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 Tuesday, the 17th day of February, 2015, by the following vote, to wit: AYES: Councilmembers: Bushey, Gamblin, McCullough & Mayor Phillips NOES: Councilmembers: Colin ABSENT: Councilmembers: None 5 ESTHER C. BEIRNE, City Clerk