Agenda Item Wording:
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Appeal of Planning Commission Action - A Public Hearing to consider an appeal of the Planning Commission’s approval of a request by the City of Visalia, pursuant to Municipal Code Section 17.38.040, to revoke Conditional Use Permit No. 2019-27, which allowed the operation of a massage therapy business at 500 South Santa Fe Street, located in the O-C (Office Conversion) zone (APN: 097-121-023).
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Deadline for Action: 9/16/2024
Submitting Department: Community Development
Contact Name and Phone Number:
Cristobal Carrillo, Associate Planner, (559) 713-4443, cristobal.carrillo@visalia.city <mailto:cristobal.carrillo@visalia.city>
Paul Bernal, Planning and Community Preservation Director, (559) 713-4025, paul.bernal@visalia.city <mailto:paul.bernal@visalia.city>
Department Recommendation:
Staff recommends that the City Council receive a staff presentation, hold a public hearing, and adopt Resolution No. 2024-50 denying the appeal and upholding the Planning Commission’s revocation of Conditional Use Permit No. 2019-27.
Summary:
On August 12, 2024, the Planning Commission held a public hearing to consider the revocation of Conditional Use Permit No. 2019-27. A summary of the 2019 Conditional Use Permit is provided below. The revocation request was based on several violations that have occurred on the property as described below. At the conclusion of the public hearing, the Planning Commission approved the revocation by a 5-0 vote.
Background Discussion:
Conditional Use Permit (CUP) No. 2019-27, originally approved by the Visalia Planning Commission on September 9, 2019, was a request by Yuzhen Yang to establish a massage therapy business within an existing office building at 500 South Santa Fe Street, in the O-C (Office Conversion) Zone. The applicant stated that one employee would provide body and foot massage services during the hours of 9:00 a.m. to 9:00 p.m., Monday through Sunday. The applicant also provided a floor plan denoting the proposed use of each room (i.e., massage rooms, break rooms, and lounge areas). The request was approved with Conditions of Approval requiring compliance with the submitted exhibits, and removal and/or permitting of fencing and a storage container on the project site. The Planning Commission staff report, and approval resolution can be found in Attachment 7 of this report.
Planning Commission Hearing:
The Planning Commission conducted a public hearing on August 12, 2024, for the revocation of Conditional Use Permit No. 2019-27. Public testimony in opposition to the revocation request was received from Roger Wilson, attorney for the current business owner. Mr. Wilson stated that the business owner could not comply with conditions of approval to remove and/or permit the fencing and storage container onsite since, as the tenant, they did not have authority to relocate structures. Mr. Wilson also noted that the City had neglected to compel compliance by applying civil penalties at its disposal, instead opting for more drastic measures to remedy the violations. Mr. Wilson further stated that building issues, such as construction of a shower without a Building Permit, had already been rectified through removal of the non-compliant structure. Lastly, Mr. Wilson stated that the City did not provide an interpreter during the onsite inspection, which made compliance with City requirements difficult due to the language barrier. Mr. Wilson requested that the City not revoke the CUP and instead apply civil penalties and conduct more frequent inspections, similar to practices conducted by the City of Fresno.
Staff recommended approval of the revocation request based on the findings from the June 7, 2024, onsite inspection, and the City Council’s recent adoption of an Urgency Ordinance for massage uses. At the conclusion of public testimony and deliberations, the Planning Commission approved the request to revoke Conditional Use Permit No. 2019-27 by a 5 to 0 vote.
Appeal:
On August 19, 2024, staff received an appeal of the Planning Commission’s revocation of Conditional Use Permit No. 2019-27. The appeal, filed by the applicant attorney Roger Wilson, is included as Attachment No. 1. Wilson notes that compliance with CUP conditions of approval related to onsite fencing and a storage container were the responsibility of the property owner, and that the violations discovered at the June 7, 2024, onsite inspection did not warrant revocation. No other arguments were provided nor supporting documents filed with the appeal.
Responses to the appellants claims are documented in the “Request for Revocation of Conditional Use Permit No. 2019-27” section of this report.
Request for Revocation of Conditional Use Permit No. 2019-27:
On August 12, 2024, staff presented to the Visalia Planning Commission a request to revoke CUP No. 2019-27 in response to violations of the terms and conditions of the CUP and Municipal Code (VMC) provisions for the massage therapy establishment located at 500 South Santa Fe Street. On June 21, 2024, a Notice of Conditional Use Permit Suspension letter (Attachment 2) was sent via certified mail to both the property owner and business operator informing them that the CUP was to be suspended and a public hearing set to determine if the conditional use permit should be revoked. No contacts have been received from the property owner as of the date of this report.
Staff shared findings from a June 7, 2024, site inspection of the massage establishment conducted by Neighborhood Preservation Division officers. During the inspection, it was observed that the massage establishment owner or employee conducted unpermitted construction work within the premises, installing a shower and related plumbing without a Building Permit. It was also observed that two massage beds appeared to be set up for personal use, with bedding, pillows, and adjacent nightstands for personal item storage. Personal effects, such as undergarments, were also observed hanging from the makeshift shower. The facility also contained kitchen items in areas outside of the designated break room, such as cutting boards with food scraps, plastic wrap, bowls, liquid containers, and crock pots. Based on the type of items found on the site, City staff concluded the owner or employees were also living in the commercial suite where the massage establishment is located. The commercial suite is not intended for human habitation and did not meet housing requirements. Unsafe conditions were also observed onsite. Specifically, staff noted that the unpermitted shower unit was sitting atop a wooden pallet with electrical cords from a lamp and washing machine strewn in and around the shower. Photographs taken during the inspection depicting the above conditions are provided in Attachment 4.
During the June 7, 2024, site inspection, Neighborhood Preservation staff also discovered that massage establishment employees working onsite where not in compliance Business Tax regulations pertaining to massage establishments. Specifically, massage establishment employees were found not to have registered a Business Tax Certificate with the City of Visalia Business Tax Division, nor maintained active California Massage Therapy Council (CAMTC) certifications. CAMTC certifications were also not displayed onsite. The massage establishment owner or employee also did not properly mount fire extinguishers, nor maintain fire and carbon monoxide detectors onsite. Lastly, Neighborhood Preservation staff observed that the massage establishment owner or employee were operating the use in violation of conditions of approval applied to the CUP. Specifically, an unpermitted sea train container on the premises was not removed prior to operation, and Building Permits where never obtained for an unpermitted gate and fencing onsite.
The violations and applicable sections of the VMC presented by staff to the Planning Commission are cited below, with the full text of the code sections available to view in Attachment 5.
• Zoning/CUP Violations (VMC Title 17, CUP No. 2019-27):
o Failure to obtain a Building Permit for an unpermitted gate and fencing (CUP Condition No. 4 required, “That prior to operation of the massage parlor use the applicant shall obtain a Building Permit for the metal gate and fencing…”).
o Failure to remove an unpermitted sea train container located on the premises (CUP Condition No. 5 required, “That the applicant shall remove the existing storage container from the project site prior to operation of the massage parlor use.”).
o Failure to comply with all applicable federal, state, and city laws, codes and ordinances (CUP Condition No. 8 required, “That all applicable federal, state, and city laws, codes and ordinances be met.”).
o Use of a commercial building for residential purposes without issuance of a CUP, which was required at the time of the original CUP’s approval on September 9, 2019 (VMC 17.25.030, Line R27).
• Building and Fire Code Violations (VMC Title 15):
o Construction of a shower and installation of plumbing on the premises without a Building Permit (VMC 15.08.010, 15.20.010, 15.28.010).
o Use of a commercial building for residential purposes without proper permits for its conversion (VMC 15.08.010, 15.20.010, 15.24.010, 15.28.010).
o Improper storage/mounting of fire extinguishers (VMC 8.20.010).
o Lack of smoke and carbon monoxide detectors on the premises (VMC 8.20.010, 15.080.010).
• Business Regulation Violations (VMC Title 5):
o Noncompliance with all applicable City codes (VMC 5.68.060).
o Unregistered massage employee working onsite (VMC 5.68.100.B).
o Massage employee lacking California Massage Therapy Council (CAMTC) certification (VMC 5.68.040.A, B, 5.68.080, 5.68.100.C).
o CAMTC certifications not displayed in a prominent location onsite (VMC 5.68.070, 5.68.100.D).
Staff reported that as a result of the above violations, the business was posted with a Cease-and-Desist order on June 7, 2024, and ordered to cease operations until it came into compliance with applicable legal requirements. A copy of the Cease and Desist is provided as Attachment 3.
Fiscal Impact: None.
Prior Council Action:
• On April 23, 2024, the City Council adopted Urgency Ordinance No. 2024-05, an interim ordinance adopted as emergency measures to regulate the location and operational requirements for massage establishments, citywide.
• On June 3, 2024, the City Council extended the period in which Ordinance No. 2024-05 would be in effect, up to 22 months and fifteen days after the date of approval.
Committee/Commission Review and Action:
On August 12, 2024, the Planning Commission approved revocation of Conditional Use Permit No. 2019-27, by a vote of 5 to 0.
Recommended Motion (and Alternative Motions if expected):
recommendation
I move to deny the appeal and uphold the Planning Commission’s revocation of Conditional Use Permit No. 2019-27 per Resolution No. 2024-50.
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Alternatives:
The City Council may, in lieu of the recommended motion specified above, consider any of the following alternatives:
1. Uphold the appeal and deny revocation of Conditional Use Permit No. 2019-27, allowing the Conditional Use Permit approval to remain in place;
2. Refer the matter back to Planning Commission for further evaluation; or
3. Continue the matter to a future City Council hearing.
CEQA Review: None.
Attachments:
• Resolution No. 2024-50 denying the appeal and upholding the Planning Commission’s revocation of Conditional Use Permit No. 2019-27
• Attachment 1 - Appeal by Roger Wilson, Attorney
• Attachment 2 - Notice of Conditional Use Permit Suspension
• Attachment 3 - Cease and Desist Letter
• Attachment 4 - June 7, 2024, Site Pictures
• Attachment 5 - Visalia Municipal Code Applicable Chapters, Massage Urgency Ordinance, and Conditional Use Permit No. 2019-27 Conditions of Approval
• Attachment 6 - August 12, 2024 Revocation of Conditional Use Permit No. 2019-29 Planning Commission Staff Report and Resolution No. 2024-47
• Attachment 7 - September 9, 2019 Conditional Use Permit No. 2019-27 Planning Commission Staff Report and Resolution No. 2019-51
• Aerial Map
• Location Map
• PowerPoint Presentation