Agenda Item Wording:
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Urgency Ordinance - Public Hearing and adoption of an interim Ordinance No. 2024-05 adopted as emergency measures to regulate the location and operational requirements for massage establishments pursuant to Government Code section 65858(b), Citywide. (4/5’s approval of the City Council is required for passage.)
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Deadline for Action: 4/23/2024
Submitting Department: Community Development
Contact Name and Phone Number:
Paul Bernal, Planning and Community Preservation Director, paul.bernal@visalia.city <mailto:paul.bernal@visalia.city>, (559)713-4025
Department Recommendation:
Staff recommends that the City Council adopt Ordinance No. 2024-05, an interim ordinance adopted as emergency measures to regulate the location and operational requirements for massage establishments.
Summary:
On March 4, 2024, the City Council adopted Ordinance No. 2024-03. The interim urgency ordinance was adopted to establish additional regulations for massage establishments, in the interim, while more specific regulatory changes to the Visalia Municipal Code (Title 5 Business Regulations and Title 17 Zoning) are being further considered.
The interim emergency ordinance was considered under Visalia City Charter Article VI, Section 7, and Government Code section 65858, which permit the adoption of an interim emergency ordinance, as an urgency measure upon findings that the proposed ordinance is needed due to alleviate a current and immediate threat to the public health, safety, or welfare. The ordinance was approved and went into effect immediately. However, under section 65858, an interim ordinance is only valid for 45 days unless it is readopted after a publicly noticed hearing to extend the ordinance for a longer period. City staff were not able to publish the required public notice within the initial 45-day period.
As result, staff requesting the City Council adopt Ordinance No. 2024-05 by a 4/5 vote pursuant to Government Code section 65858(b), to reinstate the interim emergency ordinance. The proposed ordinance contains the same terms as the prior emergency ordinance. Staff is working on formal municipal code amendments for the City Council’s consideration to replace the emergency ordinance in late May 2024.
If the formal amendments are not ready, then staff will return to City Council to renew the emergency ordinance.
Current City of Visalia Regulations:
The City of Visalia Municipal Code Title 5 Business Regulations Section 5.68 “Massage Establishments” contains permitting standards intended to comply with California law and establishes health and safety guidelines for massage establishments. A copy of Section 5.68 is attached to this report. The Zoning Ordinance, Section 17.25.030 Zoning Use Matrix, identities “Massage Therapist” uses as Conditionally Permitted (requiring a Conditional Use Permit), in the Neighborhood Commercial (C-N), Commercial Mixed Use (C-MU), Downtown Mixed Use (D-MU), Professional / Administrative Office (O-PA), and Office Conversion (O-C) zones, while the Regional Commercial (C-R) zone allows massage therapist businesses as a Permitted use.
A review of current business licenses has identified approximately 103 licenses that are either issued, applied for and/or delinquent for massage establishments/therapists in the City of Visalia.
Urgency Ordinance Request:
An article published in the Human Trafficking Institute website identifies that illicit massage businesses thrive largely with impunity because these operators exploit vulnerabilities in regulatory framework and lack of enforcement oversight. There is evidence to support that some massage establishments serve as fronts for prostitution or human sex trafficking and the potential for crime and unsafe activity at these establishments is particularly concerning given that some of these establishments are located within close proximity to places where families congregate, such as restaurants and shopping center areas. In addition, concentrating land uses with such concerns may also increase the potential for greater combined impacts from illicit activities. A study by the Urban Institute, Estimating the Size and Structure of the Underground Commercial Sex Economy in Eight Major Us Cities (2014), documented the extent of the commercial sex industry including massage parlors. The study suggests that much of these illicit activities in cities have moved indoors and is furthered by internet related communication. In the cities studied, there was a rise of massage businesses that sometimes was associated with organized criminal activities and human trafficking.
Since 2018, the Neighborhood Preservation Division received complaints regarding 18 massage establishments; of the 18 complaints received 15 were found to be operating in violation of the City’s municipal code. Three complaints were found to be unsubstantiated with no violations found. Violations noted ranged from massage therapist not visibly posting their CMATC certification, tenant improvements done without the benefit of an approved building permit, employees living in the establishment, operating without an approved conditional use permit, and illicit activities. Even with enforcement efforts, the potential for increases in crime and ancillary effects to the community continue to be a high concern.
Although some of these businesses have been shut down due illicit activity, there are many massage establishments that operate legitimately, and as such, the City is not seeking to outright prohibit massage establishments from legally operating in the City of Visalia, but rather is seeking additional codified requirements in the interim while revisions to the municipal code are being drafted.
The proposed restrictions, as stated below and as provided in the attached Ordinance No. 2024-05, do not represent a moratorium or ban on massage establishments. In addition, the separation/buffer requirements in the urgency ordinance would not impact existing legal businesses that are currently operating under approved permitting requirements. The emergency regulations are intended to ensure the City of Visalia regulates massage establishments in compliance with adopted state statutes and imposes reasonable conditions on the operation of massage establishments, in the interim, until more specific regulatory changes to the Visalia Municipal Code are further considered and adopted at a future public hearing.
Interim Measures:
In order to avoid the potential threat that the approval of a conditional use permit allowing a massage business will result in negative impacts to the public’s peace, health, safety, and welfare, the following interim ordinance requirements are being requested to ensure that nuisance activities occurring at massage establishments in the City of Visalia are properly regulated.
In reviewing other jurisdictions ordinances in California for this type of business, staff found that separation or saturation requirements was one of many tools implemented to deter crime, alleviate overconcentration in a particular area of the community, and to provide a buffer from sensitive receptors. Commonly, most jurisdictions used a 300-to-500-foot buffer as a regulation to reduce the potential for overconcentration. The Visalia municipal code applies distance requirements of 1,000-feet for smoke shop/tobacco establishments, 750-feet for adult oriented businesses, and 500-feet for delivery only medical marijuana businesses.
Staff is recommending a 750-foot separation between massage establishments. Staff concludes the 750-foot separation buffer would have the effect of tempering the proliferation of massage establishments within the City, along the Mooney Boulevard corridor where it is clearly apparent that there is an overconcentration of massage establishments as depicted per the attached maps (see attached massage establishment maps), and to potentially reduce the associated effects of illicit activities on adjacent commercial businesses and neighborhoods. Attached are maps of existing licensed Massage Establishments located in Visalia (see Attachments 1 and 2), and the 750-foot buffer from each establishment (see Attachment 3). The 750-foot buffer map (Attachment 3) depicts that when the buffer is applied, there remains areas for a new massage establishment to occur. The information provided on the mapping exhibits identifies areas in the community that appear to be overconcentrated with massage establishments but demonstrates the emergency regulations being considered would not constitute a moratorium or ban on these establishments.
While the City recognizes that commercial massage therapy is a professional pursuit that offers the public valuable health and therapeutic services, it may continue to find that unless property regulated, the operation of massage establishments may be associated with unlawful activity that pose a threat to the quality of life in the community. The following regulations are being proposed for the City Council’s consideration, in the interim and immediate basis:
a. In addition to Conditional Use Permit being required in the Neighborhood Commercial (C-N), Commercial Mixed Use (C-MU), Downtown Mixed Use (D-MU), Professional / Administrative Office (O-PA), and Office Conversion (O-C) zones, a Conditional Use Permit is also required for Massage Establishments/Therapist in the Regional Commercial (C-R) zone.
b. No Massage Establishment may be located within a radius of 750 feet of another Massage Establishment, as measured in a straight line, from the nearest point of the premises where said massage establishment is conducted to the nearest property line of any lot or legal parcel upon which a massage establishment is proposed to be located. Existing businesses operating a Massage Establishment that are already conducting business and in possession of all previously required licenses and/or permits for such business in the City of Visalia on the effective date of this emergency ordinance are considered existing non-conforming related to separation from all required sources as long as the permit is not revoked, or the business does not cease operation. The regulations proposed in this interim ordinance that do not concern the location of the business would apply.
c. No Massage Establishment located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area shall block visibility into the interior reception and waiting area through the use of curtains, closed blinds, tints, or any other material that obstructs, blurs, or unreasonably darkens the view into the premises.
d. Doors. All front, reception, hallway or front exterior doors except back or rear exterior doors used for employee entrance to and exit from the massage establishment) shall be kept unlocked during business hours. A massage establishment may lock its exterior doors during business hours if the establishment is owned by one individual with one or no employees. No massage may be given within any cubicle, room, booth or any area within a massage establishment which is fitted with a door capable of being locked, unless the only door is an exterior door.
e. Minimum lighting consisting of at least one artificial light of not less than forty watts shall be provided and shall be operating in each room or enclosure where Massage Services are being performed on Clients, and in all areas where Clients are present.
f. Living Quarters Prohibited. No person or persons shall be allowed to reside, dwell, occupy or live inside a Massage Establishment at any time. Beds and floor mattresses shall not be permitted on the premises.
g. Inspections. The operator and/ or on duty Responsible Employee consents to the inspection of the massage establishment by the City's Building and Safety Division, Code Enforcement Division, Fire Department and Police Department and the County Health Department for the purpose of determining that the provisions of this ordinance or other applicable laws or regulations are met. The City' s Building and Safety Division, Code Enforcement Division, Fire Department and Police Department and the County Health Department may, from time to time, make unannounced inspections of each massage establishment for the purpose of determining that the provisions of this chapter, State law or other applicable laws or regulations are met.
h. No person shall enter, be or remain in any part of a Massage Establishment while in possession of an open container of alcohol, or consuming or using any alcoholic beverages or controlled drugs except pursuant to a prescription for such drugs. The Owner, Operator, or responsible managing Employee shall not permit any such person, or any person who is clearly intoxicated, to enter or remain upon the premises.
i. No Massage Establishment shall operate a school of massage or use the same facilities as that of a school of massage.
The regulations, as provided above, shall be considered additional regulations, and will not supersede the current municipal code requirements found in Visalia Municipal Code Title 5 Business Regulations Section 5.68 “Massage Establishments”. Rather, these additional regulations will help strengthen the requirements as established in Sections 5.68 and 17.25 of the Visalia Municipal code.
Fiscal Impact: None.
Prior Council Action: None.
Other: None
Alternatives:
The City Council may revise or decline staff’s request to adopt an urgency ordinance.
Recommended Motion (and Alternative Motions if expected):
recommendation
I move to adopt Ordinance No. 2024-05, an interim ordinance, as an emergency measure to regulate the location and operational requirements for massage establishments, citywide.
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Environmental Assessment Status:
The requested action is not subject to the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15060(c)(3) since the activity in question is not a “project” as defined in CEQA Guidelines Section 15378, it does not have a potential for resulting in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.
CEQA Review:
The requested action is not a “project” under CEQA.
Attachments:
1. Ordinance No. 2024-05
2. Attachment 1 - Massage Establishment Locations
3. Attachment 2 - Intensity Map
4. Attachment 3 - 750-ft. Buffer
5. Title 5 Business Regulations Section 5.68 “Massage Establishments”