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05-26-2015 - Agenda PacketPlanning Commission Regular Meeting City of Dublin May 26, 2015 City Council Chambers 7:00 P.M. 100 Civic Plaza 1. CALL TO ORDER & ROLL CALL 2. PLEDGE OF ALLEGIANCE TO THE FLAG 3. ADDITIONS OR REVISIONS TO THE AGENDA 4. MINUTES OF PREVIOUS MEETINGS – May 12, 2015 5. ORAL COMMUNICATION - At this time, members of the public may address the Planning Commission on any non-agendized item(s) of interest to the public. In accordance with State Law, no action or discussion may take place on any item not appearing on the Planning Commission agenda. The Planning Commission may respond briefly to statements made or questions posed, or may request Staff to report back at a future meeting concerning the matter. Any member of the public may contact the Assistant Community Development Director regarding proper procedure to place an item on a future Planning Commission agenda. 6. CONSENT CALENDAR 7. WRITTEN COMMUNICATIONS 8. PUBLIC HEARINGS 8.1 PLPA-2010-00017 Amendments to Dublin Zoning Ordinance Chapter 8.08 (Definitions) and Chapter 8.12 (Zoning Districts and Permitted Uses of Land) 9. NEW OR UNFINISHED BUSINESS 10. OTHER BUSINESS: Brief INFORMATION ONLY reports from the Planning Commission and/or Staff, including Committee Reports and Reports by the Planning Commission related to meetings attended at City Expense (AB 1234). 11. ADJOURNMENT This AGENDA is posted in accordance with Government Code Section 54954.2(a) and Government Code Section 54957.5 If requested, pursuant to Government Code Section 54953.2, this agenda shall be made available in appropriate alternative formats to persons with a disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12132), and the federal rules and regulations adopted in implementation thereof. To make a request for disability -related modification or accommodation, please contact the City Clerk’s Office (925) 833-6650 at least 72 hours in advance of the meeting. A complete packet of information containing Staff Reports (Agenda Statements) and exhibits related to each item is available for public review at least 72 hours prior to a Planning Commission Meeting or, in the event that it is delivered to the Commission members less than 72 hours prior to a Planning Commission Meeting, as soon as it is so delivered. The packet is available in the Community Development Depart ment. (OVER FOR PROCEDURE SUMMARY) (or Dioe ii, '=a• Paz STAFF REPORT V �� PLANNING COMMISSION O`�LIFOR��� DATE: May 26, 2015 TO: Planning Commission SUBJECT: PUBLIC HEARING — PLPA-2010-00017 Amendments to Dublin Zoning Ordinance Chapter 8.08 (Definitions) and Chapter 8.12 (Zoning Districts and Permitted Uses of Land) Report prepared by Martha Aja, Environmental Coordinator EXECUTIVE SUMMARY: Assembly Bill 1147 provided counties and cities with additional regulatory control of Massage Establishments. An amendment to Chapter 4.20 (Massage Establishments and Massage Services) is intended to ensure that our Ordinance is compliant with current State law and provides adequate means for the City to regulate Massage Establishments. Staff is also proposing companion amendments to the Zoning Ordinance (Chapter 8) to ensure consistency with Chapter 4.20. The proposed amendments would add and amend definitions and allow Massage Establishments by-right in certain Commercial Zoning Districts. The Planning Commission is being asked to review the proposed amendments to Chapter 8 and to make a recommendation to the City Council. RECOMMENDATION: Staff recommends that the Planning Commission: 1) Receive Staff presentation; 2) Open the public hearing; 3) Take testimony from the public; 4) Close the public hearing and deliberate; and 5) Adopt a Resolution recommending that the City Council adopt an Ordinance amending Chapter 8.08 (Definitions) and Chapter 8.12 (Zoning Districts and Permitted Uses of Land) of the Dublin Municipal Code to regulate massage establishments and massage services within the City of Dublin. Submitted By/ (Revi ed By Environmental Coordinator Assistant Community Development Director COPIES TO: File Property Owner ITEM NO.: 8.1 Page 1 of 4 G:IPA120101PLPA-2010-00017 ZOA Massage Establishments\Planning CommissionIPC Staff Report 5.26.15.doc DESCRIPTION: In recent years there have been several pieces of state legislation that have affected the regulation of massage establishments within the State of California, including Senate Bill (SB) 731 and Assembly Bill (AB) 1147. SB 731 was signed into law in 2008. This legislation resulted in the formation of the California Massage Therapy Council (CAMTC), which was tasked with overseeing state wide certification of massage therapists. SB 731 limited what counties and cities could do to regulate massage establishments. The legislation prohibited local governments from regulating massage businesses differently from other professional services, such as a hair salon or nail salon. Additionally, local governments were prohibited from requiring certified massage therapists to obtain further permits, licenses or authorization to practice or open a massage establishment. There were unintended consequences of SB 731, most notably the proliferation of massage establishments and illicit activity in conjunction with those establishments throughout the State. SB 731 sunset on January 1, 2015. AB 1147 became effective on January 1, 2015. AB 1147 reinstates local government regulatory control over certain aspects of massage businesses, most importantly its land use authority. AB 1147 also expands the authority of counties and cities to regulate massage businesses through operating standards, and permit, licensing, and certification requirements. AB 1147 also provides that the California Massage Therapy Council may deny certification and discipline certificate holders. In light of the recently adopted State legislation, Staff from Community Development, Dublin Police Services and the City Attorney's Office have proposed amendments to Chapter 4.20 (Massage Establishments and Massage Services) for consideration by the City Council. The proposed Ordinance amendments are intended to ensure that our Ordinance is compliant with current State law and provides adequate means for the City to regulate Massage Establishments. Most notably, the proposed Ordinance (Section 4.20.150) would regulate the operating characteristics, physical design of interior improvements, and health and safety requirements for customers and employees. Every massage establishment would be required to obtain a Massage Establishment Permit issued by Dublin Police Services (Section 4.20.050). The ordinance further requires all Massage Therapists to be certified by the California Massage Therapy Council (Section 4.20.160) and register with Dublin Police Services (Section 4.20.230). The proposed Ordinance would apply to all existing and future Massage Establishments. The proposed amendments to Chapter 4.20 are attached to this Staff Report for your reference (Attachment 1). Staff is proposing companion amendments to Chapter 8 (Zoning Ordinance) of the Dublin Municipal Code to ensure consistency with the amended Chapter 4.20. Amendments to the Zoning Ordinance are required to be reviewed by the Planning Commission at a public hearing where a recommendation is made to the City Council. Therefore, the Planning Commission is currently being requested to review the proposed Zoning Ordinance Amendments and to make a recommendation to the City Council. The proposed amendments to Chapter 4.20 will be reviewed by the City Council in June together with the proposed amendments to Chapter 8. 2 of 4 ANALYSIS: The proposed amendments to Chapter 8.08 (Definitions) and 8.12 (Zoning Districts and Permitted Uses of Land) of the Zoning Ordinance are required to ensure consistency with Chapter 4.20 (Massage Establishments and Massage Services) of the Municipal Code. The following is a description of the proposed Zoning Ordinance Amendments. Chapter 8.08 (Definitions) The definition of "Massage" contained in Section 8.08.020 of the Dublin Municipal Code is revised to read as follows: "Massage" means any method of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or with the aid of any mechanical or electrical apparatus or appliance, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparation commonly used in this practice. The following new definitions are proposed to be added to Section 8.08.020 (Definitions) as follows: "California Massage Therapy Council" or "CAMTC" means the Massage Therapy Organization created pursuant to Section 4600.5 of the California Business and Professions Code and further defined in Section 4600 of that code. "Certified Massage Therapist" means a Massage Therapist certified by the CAMTC as a Certified Massage Practitioner or as a Certified Massage Therapist pursuant to Section 4601(b) or 4601(c) of the California Business and Professions Code. Chapter 8.12 (Zoning Districts and Permitted Uses of Land) Staff is proposing to amend Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) to change future Massage Establishments from being a conditionally permitted use to a permitted use in the C-N, C-1 and C-2 Zoning Districts and comparable Planned Development Zoning Districts. The requirement to obtain a CUP to regulate the operation of massage establishments is not necessary because the proposed amendments to Chapter 4.20 would regulate the operating characteristics. The following row of the "Land Use Matrix" table in Section 8.12.050 is proposed to be amended as follows (strikeout is the existing text and the underlined text is new): COMMERCIAL USE TYPE A R-1 R-2 R-M C-O C-N C-1 C-2 M-P M-1 M-2 Massage Establishment - - - - - CUP CUP CUP - - - P P P 3 of 4 NOTICING REQUIREMENTS/PUBLIC OUTREACH: The City held an outreach meeting on May 6, 2015. The City provided notices of this meeting to the existing Massage Establishments in the City. The meeting was attended by five Massage Therapists within the City. City staff provided an overview on the proposed amendments to Chapter 4.20 and Chapter 8 and answered questions. Additionally, the City received three comment letters from Massage Establishments, all expressing support for the proposed amendments. A Public Notice was mailed to the existing Massage Establishments and also published in the Valley Times and posted at several locations throughout the City and emailed to all persons who have expressed an interest in being notified of meetings. The Staff Report was also made available on the City's webpage. ENVIRONMENTAL REVIEW: The California Environmental Quality Act (CEQA), together with State Guidelines and City Environmental Regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared. Pursuant to the CEQA, Staff is recommending that the proposed Ordinance be found exempt from CEQA per CEQA Guidelines Section 15061(b)(3). Section 15061(b)(3) states that CEQA applies only to those projects that have the potential to cause a significant effect on the environment. The adoption of the proposed amendments of the Zoning Ordinance does not, in itself, allow the construction of any building or structure, but rather regulates Massage Establishments and Massage Services within the City. This Ordinance of itself, therefore, has no potential for resulting in significant physical change in the environment, directly or ultimately. ATTACHMENTS: 1. Draft amendments to Dublin Municipal Code Chapter 4.20 (Massage Establishments & Massage Services). 2. Resolution recommending that the City Council adopt an ordinance amending Chapter 8.08 (Definitions) and Chapter 8.12 (Zoning Districts and Permitted Uses of Land) of the Dublin Municipal Code to regulate massage establishments. 4 of 4 Chapter 4.20 MASSAGE ESTABLISHMENTS AND MASSAGE SERVICES Sections: Article I. General Provisions 4.20.010 Definitions 4.20.020 Exemptions 4.20.030 Massage Performed by Students to Members of the Public 4.20.040 Violations of Misdemeanor and a Nuisance Article II. Massage Establishments 4.20.050 Permit—Required 4.20.060 Application Procedure & Requirements 4.20.070 City Massage Establishment Permit Fee Required 4.20.080 Permit—Issuance or Denial 4.20.090 Permit—Grounds for Denial 4.20.100 Permit—Display Requirements 4.20.110 Revocation or Suspension—Reasons 4.20.120 Revocation or Suspension City Massage Establishment Permit—Hearing Procedure 4.20.130 Permit Nontransferable 4.20.140 Appeal Procedure 4.20.150 Requirements—Massage Establishments 4.20.160 CAMTC Certification Required 4.20.170 Employees—Age Requirement 4.20.180 Daily Register Required 1 ATTACHMENT 1 4.20.190 Advertising Restrictions 4.20.200 Massage Establishment Inspections 4.20.210 Massage by Customer Prohibited 4.20.220 Outcall Massage Services Prohibited Article III. Massage Therapists 4.20.230 City Massage Therapist Registration—Required 4.20.240 Registration Procedure & Requirements 4.20.250 CAMTC Certification; Exceptions 4.20.260 Continuing Registration Requirements 2 Article I. General Provisions 4.20.010 Definitions. Unless the provision or context otherwise requires, the definitions contained herein shall govern the construction of this Chapter: "Applicant" means any person who applies for a permit as required by this Chapter. "California Massage Therapy Council" or"CAMTC"means the Massage Therapy Organization created pursuant to Section 4600.5 of the California Business and Professions Code and further defined in Section 4600 of that code. "Certified Massage Therapist" means a Massage Therapist certified by the CAMTC as a Certified Massage Practitioner or as a Certified Massage Therapist pursuant to Section 4601(b) or 4601(c) of the California Business and Professions Code. "City Massage Establishment Permit"means a permit issued to a Massage Establishment by the Permit Administrator in accordance with this Chapter. "Employee" means any person, other than a Massage Therapist, who renders any service to the Permittee, who receives compensation directly from the Permittee, and who has no physical contact with the customers and clients. "Massage" means any method of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or with the aid of any mechanical or electrical apparatus or appliance, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparation commonly used in this practice. "Massage Establishment"means any establishment having a fixed place of business where any person engages in or carries on or permits to be engaged in or carried on any of the activities described in the definition of"Massage" set out in this Section. "Massage Therapist" means any person who, for any consideration whatsoever, engages in the practice of Massage as herein defined. "Outcall Massage Service" means engaging in or carrying on the practice of massage, not at a fixed location licensed such as a Massage Establishment, but at a location designated by the Permittee, Massage Therapist, customer or client. "Permit Administrator" means the Chief of Police or his/her designee. "Permittee" means any person operating or maintaining a Massage Establishment. 3 4.20.020 Exemptions. This Chapter shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions: A. Physicians, surgeons, chiropractors, osteopaths, podiatrists, physical therapists, nurses, or any other person licensed to practice any healing art under the provisions of Division 2 (commencing with Section 500) of the Business and Professions Code when engaging in such practice within the scope of his or her license. B. Trainers of any amateur, semi-professional, or professional athlete or athletic team, so long as such persons do not practice Massage as their primary occupation at any location where they provide such services in the City. C. Barbers, estheticians and cosmetologists who are duly licensed under the laws of the State of California, while engaging in practices within the scope of their licenses. D. Individuals in the City temporarily for educational events. E. Individuals administering Massages or health treatments involving Massage to persons participating in road races, track meets, triathlons, educational events, conferences or similar single-occurrence athletic, recreational, or educational events. F. Enrolled students of a school of massage when they are performing Massage within the City as part of a formal supervised internship or training program operated by the school, without compensation other than school credit, on the premises of a Massage Establishment duly authorized to operate pursuant to the terms of this Chapter; and provided that the Permittee has first notified the Permit Administrator in writing of the name, residence address, and school of the students and the dates of the trainings. If, however, Massage is provided for a fee to members of the public by students enrolled in a school of massage, services must be performed in accordance with Section 4.20.030. 4.20.030 Massage Performed by Students to Members of the Public. Any student of a school of massage who performs Massage on members of the public for a fee, must perform services under the direct supervision of a Certified Massage Therapist. 4.20.040 Violations of a Misdemeanor and a Nuisance. Any Massage provided or Massage Establishment operated, conducted, or maintained contrary to the provisions of this Chapter shall be, and the same is hereby declared to be, a misdemeanor and a public nuisance, and the City Attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in the manner provided by law. Such remedies shall be in 4 addition to any other judicial and administrative penalties and remedies available to the City under this Code or state or federal law. Article II. Massage Establishments 4.20.050 Permit—Required. A. No establishment shall offer Massage services without having first obtained a City Massage Establishment Permit in accordance with the provisions of this Chapter. B. A separate City Massage Establishment Permit must be obtained for each branch location where Massage services are carried out. C. The Massage Establishment Permit shall be renewed every two years. 4.20.060 Application Procedure & Requirements. An application for a Massage Establishment Permit shall be submitted to the Permit Administrator on forms provided by the Permit Administrator. Such forms shall require submission of the following information: A. The exact nature of the Massage to be administered, the proposed place of business and facilities therefor, and the name and address of the Applicant. The application shall include the name and street address of the owner and lessor of the real property on which the Massage Establishment is operated. In the event the Applicant is not the legal owner of the property on which the Massage Establishment is located, the application shall be accompanied by a copy of the lease and an acknowledgement from the owner of the property that a Massage Establishment is located on the property; B. The two (2) previous addresses immediately prior to the present address of the Applicant; C. Written proof that the Applicant is at least eighteen(18) years of age; D. Applicant's height, weight, color of eyes and hair; E. Two (2) color portrait photographs of the Applicant at least two inches by two inches (2" X 2"); F. Business, occupation, or employment of the Applicant for the three (3) years immediately preceding the date of application; G. The Massage or similar business license history of the Applicant; whether such person, in previously operating in this or another city, county or state under license, has had such license revoked or suspended, the reason therefor, and the business activity or occupation subsequent to such action of suspension or revocation; 5 H. Proof of an unexpired Business License or proof of current application for Business License in the City. I. All criminal convictions except minor traffic violations and any criminal charges pending against the Applicant at the time of submission of the application, other than misdemeanor traffic citations, including the name and address of the court in which the charge is pending and any applicable case numbers; J. Fingerprints of the Applicant; K. The driver's license number of the Applicant, including a copy of a driver's license or other state issued identification card and copy of either 1) a certified copy of a birth certificate or 2) passport; L. A statement whether the Applicant has failed to pay any judgment arising from or connected with the activities that would be authorized by the permit; M. Such other identification and information as deemed necessary by the Permit Administrator; and N. All Massage Establishments must demonstrate practitioner's liability insurance coverage in the amount of a minimum of$2,000,000.00 per event at all times when performing massage activities. The coverage must be held in the name of the Massage Establishment or Massage Therapist authorized to perform massage. 4.20.070 City Massage Establishment Permit Fee Required. No City Massage Establishment Permit shall be issued hereunder until the appropriate fee has been paid. The fee for a City Massage Establishment shall be as established by the City Council by resolution. 4.20.080 Permit—Issuance or Denial. The Permit Administrator shall, within thirty(30) days after receipt of an application complying with all the provisions of this Chapter, issue a permit or deliver to the Applicant, personally or by mail, written notice of denial of the permit, setting forth the reason or reasons therefor, in accordance with the provisions of Section 4.20.090. 4.20.090 Permit—Grounds for Denial. The Permit Administrator shall deny the permit if he/she finds: A. That any information contained in or submitted with the application is not true, contains material misrepresentations, or if relevant or material information is omitted from the application; or 6 B. That the operation as proposed by the Applicant would not comply with any provision of this Chapter or any other ordinance or regulation of the City or any statute or regulation of the State of California; or C. That any person who would be directly engaged in the management and operation of the Massage Establishment has been convicted of any of the following offenses or convicted of an offense outside of the State of California that would have constituted any of the following offenses if committed within the State of California: 1. An offense involving the use of force and violence upon the person of another that amounts to a felony. 2. An offense involving sexual misconduct or an offense involving conduct which requires registration under California Penal Code Section 290. 3. An offense as defined in California Penal Code Sections 315, 316, 318 or 647(b) or 647b and as said statues may be amended in the future, theft or fraud related offenses, convictions under California Penal Code Section 11225 et seq., or crimes that are designated in California Government Code Section 51032(b) and as that statue may be amended in the future or conviction of any other state or federal offense involving dishonesty, fraud, deceit, violence or moral turpitude or conspiracy to commit any of the offenses designated above. Convictions that have been expunged shall also be reported; or D. That, for any other reason, the operation as proposed would be detrimental to the public peace, health, safety, morals or welfare or to neighboring property; or E. That the proposed name of the business for the establishment suggests that the establishment will offer or practice any service or activities proscribed under the provisions of this Chapter. 4.20.100 Permit—Display Requirements. Every Massage Establishment Permit issued pursuant to the provisions of this Chapter shall at all times be displayed in a conspicuous place within the Massage Establishment. 4.20.110 Revocation or Suspension—Reasons. Any City Massage Establishment Permit issued pursuant to this Chapter may be suspended or revoked by the Permit Administrator after a hearing, where it is found by clear and convincing evidence that any of the following have occurred: A. Finding of Violation. The person(s) to whom the City Massage Establishment Permit has been issued, or any person employed or retained by the Massage Establishment, has been found to have violated any provision of this Chapter; or 7 B. Prohibited Conduct. The Permittee, or any person employed or retained by the Massage Establishment has been convicted in a court of competent jurisdiction of having violated, or has engaged in conduct constituting a violation of, any of the following: California Penal Code Sections 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22, or conspiracy or attempt to commit any such offense, or any offense in a jurisdiction outside of the State of California that is the equivalent of any of the aforesaid offenses; or C. Registration under Penal Code Section 290. The Permittee or any person employed or retained by the Massage Establishment is required to register under Section 290 of the California Penal Code as result of conduct while working in or for the Massage Establishment; or D. Nuisance Injunction. The Permittee has been subject to a permanent injunction against the conducting or maintaining of a nuisance pursuant to this code, or Section 11225 through 11235 of the California Penal Code, or any similar provision of law in any jurisdiction outside the State of California; or E. Fraud or Misrepresentation. The Permittee or any Employee has engaged in fraud or misrepresentation or has knowingly made a misstatement of material fact while working in or for the Massage Establishment; or F. Operation during Suspension. The Permittee has continued to operate the Massage Establishment after the City Massage Establishment Permit or Establishment Registration Certificate has been suspended; or G. Massage without Certification. Massage has been performed on the premises with or without the Permittee's actual knowledge, by any person who is not a duly authorized Certified Massage Therapist; or H. Prohibited Acts. There have been one or more acts prohibited under California Penal Code Sections 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22 taking place on the premises, whether or not any criminal prosecution has been pursued or conviction obtained for such acts, and whether or not they occurred with or without the actual knowledge of the Permittee; or I. Sexual Touching. The Permittee or any person employed or retained by the Massage Establishment or any other person on the premises of the Massage Establishment has engaged in conduct or committed acts that a reasonable person in a patron's position would understand as an offer to perform on or engage in with the patron acts that are sexual in nature or that involve touching of the patron's genitals, pubic area, anus, and areola; or J. Negligent Supervision. The Permittee failed to provide adequate supervision of the Massage Establishment, resulting in a pattern of at least three violations of this Code or state or federal law. 8 4.20.120 Revocation or Suspension of City Massage Establishment Permit—Hearing Procedure. A. Written Notice Required. The Permit Administrator, before revoking or suspending any Establishment Registration Certificate, shall give the Permittee at least ten (10) business days' written notice of the alleged grounds for revocation or suspension and shall conduct a hearing in the matter of whether the Permit or Certificate shall be revoked or suspended. The hearing shall be conducted at least ten (10)business days from the date of written notice which shall be provided in the following manner: 1. Service of Notice and Order. All notices shall be posted on the property and also served upon the record owner and any tenant. A copy of the notice shall also be served on each of the following if known to the Permit Administrator or disclosed from official public records: the holder of any mortgage or deed of trust or other lien or encumbrance; the owner or holder of any lease; and the holder of any other estate or legal interest of record in or to the building or the land on which it is located. The failure of the Permit Administrator to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served to relieve any such person from any duty or obligation imposed by the provisions of this Section. 2. Method of Service. Service shall be made upon all persons entitled thereto either personally or by mailing a copy by First Class U.S. Mail to each such person at their address as it appears on the last equalized assessment roll of the county or as known to the Permit Administrator. If no address of any such person appears or is known to the Permit Administrator, then a copy shall be mailed to the address of the parcel of land involved in the proceedings. The failure of any such person to receive such notice shall not affect the validity of any proceedings taken under this Section. Service shall be effective on the date of the mailing. 3. Proof of Service. At the time of service, each person affecting service shall complete a written declaration under penalty of perjury, which declares the time, date and manner in which service was made. The declaration shall be affixed to the copy of the notice and order retained by the Permit Administrator. B. Hearing. The Permit Administrator shall consider all evidence at the hearing. The hearing may, after being commenced within the time specified pursuant to subsection (A) of this Section,be continued for good cause by the Permit Administrator from time to time. The Permit Administrator shall, at the conclusion of the hearing, make findings of fact based upon the evidence submitted and shall decide whether or not the Permit or Certificate shall be revoked or suspended. C. Notice of Decision. The Permit Administrator's written notice of decision shall be served on the Permittee, within thirty(30) business days of the conclusion of the hearing, in the manner provided in Section 4.20.120(A)(2) of this Code, and, in the case of a revocation or suspension, such Notice of Decision shall indicate the appeal procedures as set forth hereinafter. 9 4.20.130 Permit Nontransferable. No permit issued pursuant to the provisions of this Chapter is transferable to any other person or location. 4.20.140 Appeal Procedure. An Applicant or Permittee may appeal any action or determination of the Permit Administrator under the provisions of this Chapter to the City Manager pursuant to the provisions of Section 1.04.050 by filing written notice thereof with the City Clerk not later than ninety-six (96) hours after the delivery of any written notice given by the Permit Administrator. The effect of revocation of a permit shall be suspended by the filing of a notice of appeal until the determination of the appeal by the City Manager. 4.20.150 Requirements—Massage Establishments. A. Operational Requirements. Except as otherwise specifically provided in this Chapter, the following operational requirements shall be applicable to all Massage Establishments located within the City: 1. No Massage Establishment shall be open for business between the hours of ten p.m. (10:00 p.m.) of one day and seven a.m. (7:00 a.m.) of the following day. Massage begun any time before 10:00 p.m. must nevertheless terminate at 10:00 p.m. The hours of operation shall be displayed in a conspicuous public place in the reception area and in any front window clearly visible from outside of the Massage Establishment. 2. Patrons and visitors shall be permitted in the Massage Establishment only during the hours of operation. 3. Except for a patron who is inside a room for the purpose of receiving a Massage, no patrons or visitors shall be permitted in or on the Massage Establishment premises at any time who are less than fully clothed in outer garments of nontransparent material, or who display or expose themselves in underclothing or similar intimate apparel. 4. During the hours of operation, visitors shall not be permitted in Massage rooms except as follows: a) the parents or guardian of a patron who is a minor child may be present in the room with that minor child; b) the minor child of a patron may be present in the room with the patron when necessary for the supervision of the child; and c) the conservator, aid, or other caretaker of a patron who is elderly or disabled may be present in the room with that elderly or disabled person. 5. During the hours of operation, patrons shall be permitted in Massage rooms only if at least one duly authorized Certified Massage Therapist is present on the premises of the Massage Establishment. 10 6. A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises, or provided to patrons before services are rendered. The services shall be described in English and may also be described in such other languages as may be convenient. No person employed or retained by the Massage Establishment shall offer to perform, any services or fees other than those posted. 7. For all Employees employed or retained by the Certified Massage Establishment who provide Massage, the following document shall be available to City staff upon inspection pursuant to Section 4.20.200: (i) a valid permit from the CAMTC. B. Physical Facility and Building and Fire Code Requirements. Except as otherwise specifically provided in this Chapter, the following physical facility and building code requirements shall be applicable to all Massage Establishments located within the City: 1. Front Door and Reception Area. One front door shall be provided for patron entry, which shall open to an interior patron reception and waiting area immediately inside the front door. All patrons and any persons other than individuals employed or retained by the Massage Establishment shall be required to enter and exit through the front door. 2. Visibility. 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. 3. Locks. All interior doors, including rooms or cubicles in which Massage occurs, but excluding individual dressing rooms and toilet rooms, shall be incapable of being locked and shall not be blocked to prevent opening. Draw drapes, curtain enclosures, or accordion-pleated closures in lieu of doors are acceptable on all inner rooms or cubicles. 4. Lighting. Minimum lighting equivalent to at least one 40-watt light shall be provided in each room or cubicle in which Massage is provided. 5. Tables, Mats, and Beds. A massage table shall be used for all Massage, with the exception of"Thai," "Shiatsu," and similar forms of therapy, which may be provided on a padded mat on the floor, provided the patron is fully attired in loose clothing, pajamas, scrubs, or similar style of garment. Massage tables shall have a minimum height of 18 inches. Beds, floor mattresses, and waterbeds are not permitted on the premises of the Massage Establishment, and no Massage Establishment shall be used for residential or sleeping purposes. 6. Lockers. All locker facilities that are provided for the use of patrons shall be fully secured for the protection of the patrons' valuables, and each patron shall be given control of the key or other means of access. 11 7. Building and Fire Codes. The Massage Establishment shall comply with all applicable state and local building standards (as adopted in Title 7 of this Code) and the fire code(as adopted in Title 5 of this Code). C. Health and Safety Requirements. Except as otherwise specifically provided in this Chapter, the following health and safety requirements shall be applicable to all Massage Establishments located within the City: 1. Towels and Linens. The Massage Establishment shall at all times be equipped with an adequate supply of clean sanitary towels, coverings, and linens, and all massage tables shall be covered with a clean sheet or other clean covering for each patron. After a towel, covering, or linen has been used once, it shall be deposited in a closed receptacle and not used again until properly laundered and sanitized. Towels, coverings, and linens shall be laundered either by regular commercial laundering, or by a noncommercial laundering process that includes immersion in water at least 140 degrees Fahrenheit for not less than 15 minutes during the washing or rinsing operation. Clean towels, coverings, and linens shall be stored in closed, clean cabinets when not in use. 2. Cleaning and Disinfecting. All rooms or cubicles, wet and dry heat rooms, toilet rooms, shower compartments,hot tubs, and pools shall be thoroughly cleaned and disinfected as needed, and at least once each business day when the premises are open and such facilities are in use. All bathtubs shall be thoroughly cleaned and disinfected after each use. 3. Liquids, Creams, and Powders. All liquids, creams, or other preparations used on or made available to patrons shall be kept in clean and closed containers. Powders may be kept in clean shakers. All bottles and containers shall be distinctly and correctly labeled to disclose their contents. When only a portion of a liquid, cream, or other preparation is to be used on or made available to a patron, it shall be removed from the container in such a way as not to contaminate the remaining portion. 4. Invasive Procedures. No invasive procedures shall be performed on any patron. Invasive procedures include,but are not limited to: (a) application of electricity that contracts the muscle; (b)penetration of the skin by metal needles; (c) abrasion of the skin below the nonliving, epidermal layers; (d) removal of skin by means of any razor-edged instrument or other device or tool; (e) use of any needle-like instrument for the purpose of extracting skin blemishes; and (f) other similar procedures. 5. Garments Provided to Patrons. All bathrobes, bathing suits, and/or other garments that are provided for the use of patrons shall be either fully disposable and not used by more than one patron, or shall be laundered after each use pursuant to subsection 1 of this Section. 6. Combs and Brushes. All combs, brushes, and/or other personal items of grooming or hygiene that are provided for the use of patrons shall be either fully 12 disposable and not used by more than one patron, or shall be fully disinfected after each use. 7. Footwear. No patrons shall be allowed to use any shower facilities of the Massage Establishment unless such patrons are wearing slip-resistant sandals or flip-flops while in the shower compartment. All footwear such as sandals or flip-flops that are provided for the use of patrons either shall be fully disposable and not used by more than one patron, or shall be fully disinfected after each use. 8. Draping and Contact with Genitals. The patron's genitals, pubic area, anus, and female patron's breasts below a point immediately above the top of the areola must be fully draped at all times while any Employee of the Massage Establishment is in the massage therapy room or cubicle with the patron. No Massage shall be provided to a patron that results in intentional contact, or occasional and repetitive contact, with the genitals, anus, or areola of a patron. 9. Alcohol. No alcoholic beverages shall be sold, served, or furnished to any patron; nor shall any alcoholic beverages be kept or possessed on the premises of a Massage Establishment. D. Attire and Hygiene. The following attire and physical hygiene requirements shall be applicable to all Employees, and any other persons who work permanently or temporarily on the premises of a Massage Establishment within the City, including,but not limited to, all persons who are employed or retained to practice Massage: 1. Garments. All persons shall wear clean and sanitary outer garments at all times. All outer garments shall be of a fully opaque, nontransparent material and provide complete covering from at least the mid-thigh to two inches below the collarbone. The midriff may not be exposed. 2. Exposure. No Operator, Employee, or visitor shall, while on the premises of a Massage Establishment, and while in the presence of any patron, customer, Employee or visitor, expose his or her genitals,buttocks, or chest. 3. Clean Skin. All persons shall thoroughly wash their hands with soap and water or any equally effective cleansing agent immediately before providing Massage. No Massage shall be provided upon a surface of the skin or scalp of a patron where such skin is inflamed,broken (e.g., abraded or cut), or where a skin infection or eruption is present. E. Display of Permits and Certifications. Each person employed or retained to perform Massage in or on the premises shall display on his or her person a copy of the valid photograph- bearing identification card issued to that Employee by the CAMTC. A copy of each such identification card shall also be displayed in an open and conspicuous place visible from the entrance and/or reception and waiting area of the Massage Establishment. The home address of any Employee need not be displayed. 13 4.20.160 CAMTC Certification Required. Massage Establishments within the City shall only employ CAMTC certified Massage Therapists. Certification as a Certified Massage Therapist must be conspicuously posted within the Massage Establishment. 4.20.170 Employees—Age Requirement. No Permittee shall employ either as a Massage Therapist or other Employee any person under the age of eighteen (18) years. 4.20.180 Daily Register Required. Every Permittee shall keep a daily register, approved as to form by the Permit Administrator, of all patrons, with names, addresses and hours of arrival and the rooms or cubicles assigned, if any. The daily register shall at all times during business hours be subject to inspection by the Permit Administrator, and shall be kept on file for one (1) year. 4.20.190 Advertising Restrictions. No Massage Establishment granted a permit under the provisions of this Chapter shall place, publish or distribute or cause to be placed,published or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective patrons that any service is available other than those services described in Section 4.20.010 ("Massage") nor shall any Massage Establishment indicate in the text of such advertising that any service is available other than those services described in Section 4.20.010 ("Massage"). 4.20.200 Massage Establishment Inspections. A. The Permit Administrator shall have the right to enter any Massage Establishment during regular business hours, without a search or inspection warrant, to make reasonable inspection to ascertain whether there is compliance with provisions of this Chapter. B. The Massage Establishment shall take immediate action to correct each violation noted by the Permit Administrator. A re-inspection will be performed within thirty (30)business days to ensure that each violation noted by the Permit Administrator has been corrected. 4.20.210 Massage by Customer Prohibited. No customer or client of a Massage Establishment shall Massage a Massage Therapist, or any other person within a Massage Establishment. 14 4.20.220 Outcall Massage Services Prohibited. No person shall engage in Outcall Massage Services. Outcall massage shall not include Massage provided by any person licensed under Business and Professions Code Section 2135 through 2139 (medicine), 2630 or 2639 (physical therapy), 2732.1, 2733 or 2742 (nursing), or under the Chiropractic Initiative Act of 1922. Article III. Massage Therapists 4.20.230 City Massage Therapist Registration—Required. Except for any person licensed under Business and Professionals Code Sections 2135 through 2139 (medicine), 2630 or 2639 (physical therapy), 2732.1, 2733 or 2742 (nursing) or under the Chiropractic Initiative Act of 1922, no person shall, in or upon any premises in the City, act in the capacity of a Massage Therapist without first having registered with the Permit Administrator in accordance with the provisions of this Chapter. 4.20.240 Registration Procedure & Requirements. Each Massage Therapist will adhere to the certification rules and regulations set forth by the CAMTC. Massage Therapists must complete all registration forms provided to him/her by the Permit Administrator. Massage Therapists shall come into the City every two years to demonstrate that they have re-certified their state certification. Such forms shall require submission of the following information: A. The name and residence address of the Massage Therapist; B. The name and address of the CAMTC certified school attended, the dates attended and a copy of the diploma or certificate of graduation awarded the applicant showing the applicant has completed coursework necessary to achieve CAMTC Certification; C. All the information required by subsections B through M of Section 4.20.060; D. The full name, street address, and telephone number, of all other business premises in which the Massage Therapist administers Massage; E. If applicable, any other name(s) or nicknames used by the Massage Therapist; and F. Primary language(s), if other than English. 15 4.20.250 CAMTC Certification; Exceptions As set forth in Sections 4.20.160 and 4.20.240, only CAMTC certified Massage Therapists are permitted to register with the City and work at Massage Establishments. In limited circumstances, a Massage Therapist without CAMTC certification may practice Massage in the City, but only if he or she obtains written permission from the Permit Administrator. Requests must be made in writing and clearly set forth the circumstances surrounding the request. A letter approving or denying such request will be made in writing within 30 days. Decisions are made at the sole discretion of the Permit Administrator, are final, and are not subject to appeal. 4.20.260 Continuing Registration Requirements. Upon a change in location or premises or addition of premises in which the Massage Therapist administers Massage, the Certified Therapist shall update his or her registration with the Permit Administrator. 16 RESOLUTION 15-xx A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DUBLIN RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE AMENDING CHAPTERS 8.08 (DEFINITIONS) AND 8.12 (ZONING DISTRICTS AND PERMITTED USES OF LAND) OF THE DUBLIN MUNICIPAL CODE TO REGULATE MASSAGE ESTABLISHMENTS AND MASSAGE SERVICES WITHIN THE CITY OF DUBLIN WHEREAS, the City Council recognizes that massage and the provision of massage, bodywork and somatic therapies are viable and important professional services providing valuable health and therapeutic services for City residents; and WHEREAS, Assembly Bill 1147 provided counties and cities with additional regulatory control over Massage Establishments; and WHEREAS, an amendment to Chapter 4.20 (Massage Establishments and Massage Services) will ensure that our Ordinance is complaint with current State law and provide adequate means for the City to regulate Massage Establishments; and WHEREAS, amendments to Chapter 8 are proposed to ensure consistency with Chapter 4.20; and WHEREAS, the amendments to Chapter 8 include new and amended definitions and allowing Massage Establishments by-right in certain Commercial Zoning Districts; and WHEREAS, the California Environmental Quality Act (CEQA), together with State guidelines and City environmental regulations require that certain projects be reviewed for environmental impacts and that environmental documents be prepared; and WHEREAS, the proposed project is exempt from CEQA per CEQA Guidelines Section 15061 (b)(3), which states that CEQA applies only to those projects that have the potential to cause a significant effect on the environment. The adoption of the proposed amendments to the Zoning Ordinance does not, in itself, allow the construction of any building or structure, but rather regulates Massage Establishments and Massage Services within the City; and WHEREAS, a Staff Report was submitted to the City of Dublin Planning Commission recommending approval of the proposed Zoning Ordinance Amendments; and WHEREAS, the Planning Commission held a public hearing on said application on May 26, 2015; and WHEREAS, proper notice of said hearing was given in all respects as required by law; and WHEREAS, the Planning Commission did hear and consider all said reports, recommendations and testimony herein above set forth and used its independent judgment to evaluate the project. ATTACHMEN1r 2 NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin Planning Commission does hereby recommend that the City Council adopt the following amendments to the Zoning Ordinance: The definition of "Massage" contained in Section 8.08.020 of the Dublin Municipal Code is revised to read as follows in its entirety: "Massage" means any method of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or with the aid of any mechanical or electrical apparatus or appliance, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparation commonly used in this practice. The following new definitions are hereby added to Section 8.08.020 of the Dublin Municipal Code: "California Massage Therapy Council" or "CAMTC" means the Massage Therapy Organization created pursuant to Section 4600.5 of the California Business and Professions Code and further defined in Section 4600 of that code. "Certified Massage Therapist" means a Massage Therapist certified by the California Massage Therapy Council as a Certified Massage Practitioner or as a Certified Massage Therapist pursuant to Section 4601(b) or 4601(c) of the California Business and Professions Code. Section 8.12.050 (Permitted and Conditionally Permitted Land Uses) of the Dublin Municipal Code is hereby amended to change the "Massage Establishment" use type from a Conditional Use to a Permitted Use. All other rows of the table in Section 8.12.050 shall remain unchanged by this Section. COMMERCIAL USE A R-1 R- R- C- C-N C-1 C-2 M-P M-1 M-2 TYPE 2 M 0 Massage - - - - - P P P - - - Establishment Additionally, a Massage Establishment may also be established in a Planned Development (PD) Zoning District if not specifically prohibited by the PD regulations and if the project site has an underlying Commercial Land Use designation. Any PD regulations which require a Conditional Use Permit for Massage Establishments shall be superseded by this Ordinance and any Massage Establishment in a PD Zoning District, unless specifically prohibited, shall be subject to the requirements of Chapter 4.20. 2 PASSED, APPROVED AND ADOPTED this 26th day of May 2015 by the following vote: AYES: NOES: ABSENT: ABSTAIN: Planning Commission Chair ATTEST: Assistant Community Development Director 3