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Ordinance No. 284 ORDINANCE NO. 284 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHINO HILLS, CALIFORNIA AMENDING THE CHINO HILLS MUNICIPAL CODE, TITLE 5, CHAPTER 5.24 MASSAGES FOR THE PROVISIONS PERTAINING TO MASSAGE ESTABLISHMENTS; TITLE 16, CHAPTER 16.02 GENERAL PROVISIONS AND DEFINITIONS TO DEFINE MASSAGE ESTABLISHMENT, MASSAGE PRACTITIONER, AND MASSAGE THERAPIST; AND TITLE 16, APPENDIX A TO REQUIRE A CONDITIONAL USE PERMIT FOR MASSAGE ESTABLISHMENTS AND ALLOW MASSAGE PRACTITIONERS AND MASSAGE THERAPISTS AS PERMITTED USES AND FINDING PROPOSED MUNICIPAL CODE AMENDMENT NO. 15MCA01 EXEMPT FROM REVIEW UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHINO HILLS DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The City Council does hereby make the following findings of fact: a. The City currently regulates the practice of massage and the operation of massage establishments for the benefit of the public health, safety and welfare. b. Business and Professions Code §§ 4600, et seq. (enacted by SB 731 in 2008 and amended by AB 619 in 2011) created a statewide system for issuing massage worker permits, preempting local permitting systems and requirements. The statewide permitting system is administered by the California Massage Therapy Council or "CAMTC." c. Assembly Bill 1147 (enacted in 2014 and effective January 1, 2015) amended Business and Professions Code §§ 4600 and 4600.5 and Government Code § 51034 to return land use authority over massage establishments to cities. d. This ordinance is intended to allow the City to exercise broad control over land use in regulating massage establishments and to impose and enforce reasonable and necessary fees and regulations, in keeping with the requirements of existing law, while being mindful of the need to protect legitimate business owners and massage professionals. e. The Planning Commission reviewed the proposed project in a duly noticed public hearing on April 7, 2015, and adopted a resolution recommending Page 1 of 10 to the City Council the adoption of an ordinance approving of Municipal Code Amendment No. 15MCA01, amending Titles 5 and 16 of the Chino Hills Municipal Code pertaining to massage uses. f. A duly noticed public hearing before the City Council was conducted on April 28, 2015, at which time all interested persons were given an opportunity to testify in support of, or in opposition to the project. SECTION 2. The City Council finds that this ordinance is exempt from review under the California Environmental Quality Act (California Public Resources Code §§ 21000, et seq., "CEQA") and CEQA regulations (Title 14 California Code of Regulations §§ 15000, et seq.) because it establishes rules and procedures to permit operation of existing facilities; consists only of minor revisions and clarifications to existing regulations and specification of procedures related thereto; and consists of actions taken to assure the maintenance, protection and enhancement of the environment. This ordinance, therefore, does not have the potential to cause significant effects on the environment. Consequently, it is categorically exempt from further CEQA review under California Code of Regulations Title 14, §§ 15301, 15305, and 15308. SECTION 3. As required under Government Code § 65860, the Chino Hills Municipal Code amendments proposed in Municipal Code Amendment No. 15MCA01 are consistent with the Chino Hills General Plan as follows: a. The proposed amendment to the Chino Hills Municipal Code conforms to General Plan Goals LU-2 and ED-1 in that the amendment will help maintain an economic base to provide a sound fiscal foundation for the City by providing a clear regulatory framework for massage uses that is consistent with state requirements. SECTION 4. In accordance with Chino Hills Municipal Code § 16.62.040, the City Council makes the following findings of fact: a. FINDING: That the proposed Municipal Code Amendment is consistent with the goals, policies and objectives of the General Plan. FACT: The proposed amendment to the Chino Hills Municipal Code conforms to General Plan Goals LU-2 and ED-1 in that the amendment will help maintain an economic base to provide a sound fiscal foundation for the City by providing a clear regulatory framework for massage uses that is consistent with state requirements. b. FINDING: That the proposed Municipal Code Amendment will not adversely affect surrounding properties. FACT: That proposed Municipal Code Amendment would be effective citywide and ensures that massage uses are appropriately reviewed and Page 2 of 10 considered to further enhance the health, safety, and welfare of the community and will not adversely affect surrounding properties. SECTION 5. Chino Hills Municipal Code § 5.24.010 is amended to read as follows: "5.24.010 Declaration of purpose and intent. A. This chapter establishes new permitting standards intended to comply with California law and establish business licensing and health and safety guidelines for massage establishments. B. This chapter is not intended to be exclusive and compliance will not excuse noncompliance with any state or local laws or regulations that are uniformly applied to other professional or personal services businesses, including but not limited to, all zoning applications, business license provisions, building code, and fire, electrical, plumbing, and health and safety code laws and regulations applicable to professional or personal services businesses. C. This chapter establishes a local regulatory system that allows only state certified massage therapists and massage practitioners to operate within the city." SECTION 6. Chino Hills Municipal Code § 5.24.020 is amended to read as follows: "5.24.020 Definitions. Unless the contrary is stated or clearly appears from the context, the following definitions govern the construction of the words and phrases used in this chapter. Words and phrases not defined by this chapter have the meaning set forth elsewhere in this Code, the Business and Professions Code, or Government Code. "California Massage Therapy Council (CAMTC)" means the California Massage Therapy Council created pursuant to Business and Professions Code section 4500.5(a) "Certified massage practitioner" means a person who is currently certified as a massage practitioner by the CAMTC, and who administers massage for compensation. "Certified massage therapist" means a person who is currently certified as a massage therapist by the CAMTC, and who administers massage for compensation. "City" means the City of Chino Hills. "Director" means the community development director or such other person designated by the city manager. "Massage" means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical Page 3 of 10 apparatus, or other appliances or devices, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations. "Massage establishment" means and includes any massage establishment, parlor, or any room, place or institution where massage is given or administered by a massage technician for compensation. "Massage technician" means any person, who gives, performs or administers to another person a massage for any form of consideration. "Person" means and includes person(s), firms, corporations, partnerships, associations or other forms of business organization or group. "Specified anatomical areas" means and includes any of the following human anatomical areas: genitals, pubic regions, anuses, or female breasts below a point immediately above the top of the areola. "Specified sexual activities" means and includes all of the following: 1. The fondling or other erotic touching of specified anatomical areas; 2. Sex acts including, without limitation, intercourse, oral copulation, or sodomy; 3. Masturbation; or 4. Excretory functions as part of or in connection with any specified sexual activity listed in this definition. SECTION 7. Chino Hills Municipal Code § 5.24.060 is amended to read as follows: "5.24.060 Additional Requirements; conditional use permit; business license. a. Before operating a massage establishment in the city, massage establishment owners must comply with all applicable codes adopted by the city, including, without limitation, the building, electrical, and plumbing codes. b. Before opening or operating a massage establishment, a massage establishment must obtain a conditional use permit as required by Title 16, Appendix A of this Code, except that massage establishments operating in compliance with all laws prior to June 12, 2015, may continue to operate as nonconforming uses in accordance with and subject to the limitations set forth in § 16.82.020 of this Code. c. Before operating any massage establishment or becoming engaged in the occupation of a certified massage practitioner or certified massage therapist, the individual or massage establishment proposing to conduct the business must obtain the required business license to do so and, in addition, unless otherwise specified, is subject to each and all of the terms, conditions and provisions of this chapter." Page 4 of 10 SECTION 8. Chino Hills Municipal Code § 5.24.130 is amended to read as follows: "5.24.130 Revocation. A. Grounds for Revocation. With the exception of a conditional use permit, the director or city attorney may revoke approvals issued under this chapter for one or more of the following grounds: 1. Fraud or Deceit. That the licensee practiced fraud or deceit in obtaining an approval under this chapter; 2. Violation of Chapter. That the massage establishment owner, operator, massage technician, or its employee violated a provision or provisions of this chapter; 3. Criminal Conviction. That the licensee has been convicted in a court of competent jurisdiction of any offense described in this chapter; 4. Improperly Maintained Facilities. That the facilities and operations of the massage establishment are not kept in compliance with this chapter, and that the holder has failed to promptly remedy any deficiency of which the holder has been notified. For purposes of this subsection, notice shall mean notice given personally or by leaving notice at the massage establishment premises, or by first class mail, postage prepaid, to the address designated by the massage technician or facility pursuant to Section 5.24.050(B)(2); 5. Employment of Uncertified Technicians. That the massage establishment has employed, allowed or permitted an uncertified person to perform massage in the massage establishment; 6. Error. That the approval was issued in error; 7. Civil Penalties. Assessment of three or more civil penalties as provided by this chapter during any six month period; or 8. Prohibited Conduct. A massage establishment owner, operator, massage technician, or its employee or agent has been found to have engaged in prohibited conduct in violation of this chapter. B. Notice of Revocation. Upon a determination on the grounds to revoke an approval under this chapter, the Director or City Attorney must cause a notice of revocation to be mailed by first class, postage prepaid mail, to the address designated by the massage technician or massage establishment pursuant to this chapter. C. Suspension or Revocation of Conditional Use Permit. A conditional use permit issued to a massage establishment may be revoked or modified pursuant to Chapter 16.68 of this code." SECTION 9. Chino Hills Municipal Code § 5.24.150 is amended to read as follows: Page 5 of 10 "5.24.150 Appeal. Any person denied an approval under this chapter or a massage establishment owner or operator whose approval has been revoked may appeal the denial or revocation in writing pursuant to the appeal procedures provided in by chapter 1.20 of this code. Such appeal must be in writing and must be filed with the City Clerk not more than fifteen (15) days following the Director's deposit into the mail of the notice of denial or revocation sent to the applicant or massage establishment owner or operator to the address listed by the applicant or massage establishment owner or operator pursuant to this chapter. Any successful appeal will result in approval or reinstatement of an approval and refund of any fines collected by the city. Notwithstanding the foregoing, any appeal of a suspension or revocation of a conditional use permit issued to a massage establishment must comply with Chapter 16.58 of this code." SECTION 10. Chino Hills Municipal Code § 16.02.250 is amended to read as follows: "16.02.250 - "M" definitions and illustrations. "Manufactured home" means a dwelling unit certified under the National Manufactured Housing Construction and Safety Standards Act of 1974 and pursuant to Section 18551 of the Health and Safety Code. "Manufacturing" means a use engaged in the manufacture, predominantly from previously prepared materials, of finished products or parts, including processing, fabrication, assembly, treatment, and packaging of such products, and incidental processing of extracted or raw materials. "Map Act" means the Subdivision Map Act of the State of California. "Masonry" means construction composed of shaped or molded units, usually small enough to be handled by one person and composed of stone, ceramic brick or tile, concrete, glass, adobe, or the like; sometimes used to designate cast-in-place concrete. "Massage establishment" means and includes any massage establishment, parlor, or any room, place or institution where massage is given or administered by a massage practitioner or massage therapist for compensation. "Massage practitioner" means a person who is currently certified as a massage practitioner by the CAMTC and who administers massage for compensation. "Massage therapist" means a person who is currently certified as a massage therapist by the CAMTC, and who administers massage for compensation.2 1 As of the effective date of this ordinance, the CAMTC defines a"massage practitioner" as having at least 250 hours of education at a school approved by the CAMTC. 2 As of the effective date of this ordinance, the CAMTC defines a"massage therapist" as having at least having at least 500 hours of education at a school approved by the CAMTC. Page 6 of 10 "Mechanical Equipment" shall mean materials, fittings, devices, or appliances for heating, ventilation, or air conditioning (HVAC), or similar roof mounted equipment. Merger. See "Lot merger." "Mini-warehouse" means a structure containing separate storage spaces of three hundred (300) square feet or less which are designed to be leased or rented individually. "Mixed Commercial development" means a development, specifically in the freeway commercial district, consisting of two or more buildings and/or five or more tenant spaces, situated on a minimum seven acre site, constructed by a single unit in terms of access, parking, landscaping, property and landscape maintenance, and architecture, regardless of the subsequent parcelization. "Mixed use" means the development in a compact urban form of a structure or site with two or more different uses such as, but not limited to, residential, commercial, recreational, office, manufacturing, or public uses. "Mobilehome" means a structure designed for single-family detached residential use that has been manufactured pursuant to the National Manufactured Housing Construction and Safety Standards Act of 1974. "Mobilehome park or subdivision" means a parcel (or contiguous parcels) of land divided into two or more mobilehome lots for sale or rent. "Motel" means an establishment otherwise defined as a hotel with at least twenty-five (25) percent of all rooms having direct access to the parking areas without the necessity of persons passing through the main lobby of the building. "Motor vehicle" means a machine capable of self-propulsion, with or without human guidance, whether for the performance of work or as a mode of transportation. "Multifamily," where referenced in this Code to determine applicable development standards and requirements, shall apply to all uses in the RM-1, RM-2, and RM-3 districts, regardless of the type of housing (i.e., attached or detached), and to similar developments in a PUD, where the PUD does not contain a specific standard. SECTION 11. Title 16, Appendix A (Regulation of Uses by Zoning District) is amended in part as follows: R R R R R R C C C C C B L I 1 0 Zoning District Land Use A R S 1 2 3 NF GORR I 1 2 Massage Establishment CCCC C C Massage Practitioner P PIP P P P Massage Therapist PPP P P P SECTION 12. Upon the effective date of this Ordinance, the provisions hereof shall supersede any inconsistent or conflicting provisions of the San Bernardino County Page 7 of 10 Code as the same were adopted by reference by City Ordinances Nos. 91-01 and 92-02. SECTION 13. If any part of this ordinance or its application is deemed invalid by a court of competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness of the remaining provisions or applications and, to this end, the provisions of this Ordinance are severable. SECTION 14. This Ordinance must be broadly construed in order to achieve the purposes stated in this Ordinance. It is the City Council's intent that the provisions of this Ordinance be interpreted or implemented by the City and others in a manner that facilitates the purposes set forth in this Ordinance. SECTION 15. Repeal of any provision of the Chino Hills Municipal Code does not affect any penalty, forfeiture, or liability incurred before, or preclude prosecution and imposition of penalties for any violation occurring before, this Ordinance's effective date. Any such repealed part will remain in full force and effect for sustaining action or prosecuting violations occurring before the effective date of this ordinance. SECTION 16. If this entire Ordinance or its application is deemed invalid by a court of competent jurisdiction, any repeal or amendment of the Chino Hills Municipal Code or other city ordinance by this Ordinance will be rendered void and cause such previous Chino Hills Municipal Code provisions or other city ordinances to remain in full force and effect for all purposes. SECTION 17. The City Clerk is directed to certify the passage and adoption of this Ordinance; cause it to be entered into the City of Chino Hills' book of original ordinances; make a note of the passage and adoption in the records of this meeting; and, within fifteen (15) days after the passage and adoption of this Ordinance, cause it to be published or posted in accordance with California law. Page 8 of 10 SECTION 18. This Ordinance will take effect on the 31St day following its final passage and adoption. PASSED, APPROVED AND ADOPTED this 12th day of may , 2015. f/1 ,17)74,, CYNTHIA IORAN, MAYOFF ATTEST: dittea ear 410 CHERYL BALZ, CITY CLERK APPROVED AS TO FORM: MARK b. HENSLEY, CITY ATTO'R'NEY Page 9 of 10 STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO ) ss CITY OF CHINO HILLS I, CHERYL BALZ, City Clerk of the City of Chino Hills, DO HEREBY CERTIFY that Ordinance No. 284 was duly introduced at a regular meeting held April 14, 2015; and adopted ata regular meeting of the City Council held on the 12th day of May, 2015 by the following roll call vote, to wit: AYES: COUNCIL MEMBERS: MORAN, BENNETT, GRAHAM, MARQUEZ, ROGERS. NOES: COUNCIL MEMBERS: NONE ABSENT: COUNCIL MEMBERS: NONE earrror l 1 CHERYL BALZ, CIT -CLERK (SEAL) I hereby certify that the foregoing is the original of Ordinance No. 284 duly passed and adopted by the Chino Hills City Council at their regular meeting held on May 12, 2015, and that Summaries of the Ordinance were published on May 2, 2015 and May 16, 2015 in the Chino Hills Champion newspaper. CHERYL´┐ŻAl2, Y c`LE (SEAL) 10 of 10 AFFIDAVIT OF POSTING STATE OF CALIFORNIA ) CITY OF CHINO HILLS ) §. COUNTY OF SAN BERNARDINO ) Cheryl Balz, being first duly sworn, deposes and says: That she is the duly appointed and qualified City Clerk of the City of Chino Hills; That in compliance with the State laws of the State of California, a certified copy of the full text of proposed Ordinance No. 284, being: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHINO HILLS, CALIFORNIA AMENDING THE CHINO HILLS MUNICIPAL CODE, TITLE 5, CHAPTER 5.24 MASSAGES FOR THE PROVISIONS PERTAINING TO MASSAGE ESTABLISHMENTS; TITLE 16, CHAPTER 16.02 GENERAL PROVISIONS AND DEFINITIONS TO DEFINE MASSAGE ESTABLISHMENT, MASSAGE PRACTITIONER, AND MASSAGE THERAPIST; AND TITLE 16, APPENDIX A TO REQUIRE A CONDITIONAL USE PERMIT FOR MASSAGE ESTABLISHMENTS AND ALLOW MASSAGE PRACTITIONERS AND MASSAGE THERAPISTS AS PERMITTED USES AND FINDING PROPOSED MUNICIPAL CODE AMENDMENT NO. 15MCA01 EXEMPT FROM REVIEW UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. attached hereto and made a part hereof, was caused to be posted in the Office of the City Clerk. Dated this 12th day of May, 2015. (---.Arairari oo i CHERYL BALZ, CITY CLERK (SEAL)