HomeMy WebLinkAboutOrdinance #4049 ORDINANCE NO. 4049
AN ORDINANCE OF TIIE CITY OF HUNTINGTON BEACH
AMENDING CHAPTER 5.24 OF THE HUNTINGTON BEACH
MUNICIPAL CODE RELATING TO MASSAGE ESTABLISHMENTS
The City Council of the City of Huntington Beach does hereby ordain as follows:
SECTION 1. Chapter 5.24 of the Huntington Beach Municipal Code is hereby amended
to read as follows:
Chapter 5.24
MASSAGE ESTABLISHMENTS
Sections:
5.24.010 Definitions
5.24.015 Authority
5.24.020 Establishment Registration Certificate
5.24.025 Application for Establishment Registration Certificate
5.24.035 Approval or Denial of Establishment Registration Certificate
5,24.040 "Transfer of Establishment Registration Certificate
5.24.045 Establishment Registration Certificate Expiration and Renewal
5.24.050 Revocation or Suspension of Establishment Registration Certificate
5.24,055 Establishment Registration Certificate Revocation or Suspension Hearing
5.24.060 Re-Application after Denial
5,24.065 Exemptions
5.24.070 Massage Establishment Requirements
5.24.075 Massage Establishment Operation
5.24.080 Outcall Massages
5,24,085 Massage Establishment—Prohibited Conduct
5.24.090 Inspection by Officials
5.24.095 Violation—Penalty
5.24.100 Separate Violations
5.24.105 Unlawful Operation Declared Nuisance
5.24.110 Severability
5.24.010 Definitions
"Applicant" means an individual or business seeking to open a Massage Establishment in
Huntington Beach, who maintains a current CAMTC Certification or will employ only CAMTC
Certified Massage Therapists, and is applying for an Establishment Registration Certificate from
the City.
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"California Massage Therapy Council" or "CAMTC"means the organization created by the
State of California, pursuant to Division 2, Chapter 10.5 of the Business and Professions Code,
to regulate massage businesses, training, practices, and techniques.
"City" means the City of Huntington Beach.
"Establishment Registration Certificate" means a City permit issued by the Police Chief to
operate a Massage Establishment in Huntington Beach.
"Manager" (or "Operator") means the person(s), who is 18-years of age or older, managing day-
to-day operations of a Massage Establishment. A Manager must be an employee or Owner of
the Massage Establishment. A Manager may not be an independent contractor of the Massage
Establishment.
"Massage Establishment" means any massage business located in, and permitted by, the City,
including a Sole Provider, where Massage Therapy for compensation occurs. Massage
Establishments must possess all City permits and licenses including a City Business License, and
an Establishment Registration Certificate.
"Massage Therapy" (or "Massage") means any method of person-to-person contact by a
Massage Therapist that involves pressure on, friction against or stroking, kneading, rubbing,
tapping,pounding, or vibrating the external parts of the human body, except for genitals. These
person-to-person contact methods may include use of a Massage Therapist's hands, the aid of
any mechanical or electrical apparatus or appliance, and/or other similar preparations commonly
used in this practice.
"Massage Therapist"means any person who is 18-years of age or older, who maintains a
current CAMTC Certificate pursuant to Division 2, Chapter 10.5 of the California Business and
Professions Code.
"Owner" means the individual or corporation listed as the Owner on the City Business License.
"Police Chief" means means the Police Chief of the Huntington Beach Police Department or his or her
designee.
"Sole Provider" means a massage business where the Owner owns 100 percent of the business,
is the only person who provides Massage Therapy for compensation for that business, and
maintains a current CAMTC Certificate.
5.24.015 Authority
A. This Chapter is intended to supplement State Law, including Division 2, Chapter 10.5 of
the Business and Professions Code, Government Code Section 51034, and any other
applicable State Law, for the regulation of massage businesses.
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B. The Police Chief has the authority, at his sole discretion and without prejudice to the
aforementioned State Laws, to permit, inspect, or otherwise regulate Massage
Establishments established in Huntington Beach. 'The Police Chief may revoke, suspend,
or deny any Establishment Registration Certificate. Any and all of these rights and/or
duties provided to the Police Chief by this Chapter are delegable at his or her discretion
to other City authorities, departments, or agencies.
5.24.020 Establishment Registration Certificate
All Massage Establishments seeking to open and/or conduct business in Huntington Beach must
first obtain an Establishment Registration Certificate. It is unlawful to open or operate a massage
business in Huntington Beach without having first obtained an Establishment Registration
Certificate.
5.24.025 Application for Establishment Registration Certificate
A City-provided application form must be completed before obtaining an Establishment
Registration Certificate. The Applicant must provide all information required on the application,
provide any supplemental information requested by the City, and attest under penalty of perjury
that all information presented on the application is true and correct.
A. All Applicants must submit to, and participate in, a background check either by the City
or as part of his or her prior CAMTC Certification. No Establishment Registration
Certificate will be issued if the background check reveals any of the following:
1. The Applicant has been convicted of any felony, or conspiracy to commit, or
attempt to commit, the same, as defined by Federal or State law; or
2. The Applicant has been convicted of any misdemeanor, or conspiracy to commit,
or attempt to commit, the same, which is sexual in nature, as defined by State
and/or local law; or
3. The Applicant has been convicted of any crime of moral turpitude, or conspiracy
to commit, or attempt to commit, the sate, as defined by State and/or local law;
or
4. The Applicant has had an individual or business permit or license with any
agency,board, city, county, territory, or state denied, revoked, restricted, or
suspended within the last five years; or
5. The Applicant has been subject to an injunction for nuisance, as defined by State
or local laws, within the last five years.
B. The Applicant shall provide the non-refw-idable Establishment Registration Certificate
application fee at the time the application is submitted in an amount established by
Resolution of the City Council.
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C. Upon receipt of the completed Establishment Registration Certificate application,the
Police Chief will commence an application review and background check, if applicable.
The Police Chief will approve or deny the application within 60 days. If 60 days pass
without a response from the Police Chief, the application is automatically deemed denied.
5.24.035 Approval or Denial of Establishment Registration Certificate
A. An Establishment Registration Certificate may be issued by the Police Chief to any
Applicant that demonstrates all of the following:
l. The Applicant's background check does not reveal violations contemplated by
Section 5.24.025(A) of this Chapter; and
2. For new Massage Establishments, the proposed location for the Massage
Establishment is no fewer than 1,000 feet from another Massage Establishment as
measured from the property lines. For existing Massage Establishments that are
located within 1,000 feet of another Massage Establishment at the time this
Chapter is enacted, those Massage Establishments are not required to relocate but
are subject to the provisions of this Chapter for continued operation, transfer of
ownership, and/or sale of the Massage Establishment; and
3. The Massage Establishment complies or will comply with all applicable Federal,
State, and local laws, including the City's Building Codes, Zoning Codes, State
Health Regulations, and all requirements of this Chapter; and
4. The Applicant possesses a valid City Business License; and
5. The Applicant truthfully, accurately, and completely provided all information,
assurances, and/or documentation required by the City on the Establishment
Registration Certificate application and/or additional information required by the
Police Chief; and
6. The Massage Establishment employs only CAMTC Certified Massage Therapists.
B. The Applicant for the Establishment Registration Certificate may be denied for failure to
satisfy any of the requirements in this Chapter.
5.24.040 Transfer of Establishment Registration Certificate
An Establishment Registration Certificate is generally not transferrable. Transfers may be
granted at the sole discretion of the Police Chief and no transfer of an Establishment Registration
Certificate will be allowed in the event that a Massage Establishment has pending investigations,
reviews, or citations; or in certain instances where Massage Establishments are located within
1,000 feet of another Massage Establishment.
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5.24.045 Establishment Registration Certificate Expiration and Renewal
An Establishment Registration Certificate shall be valid for one year; renewals will be required
thereafter. Term of renewal will coincide with the dates appearing on the Applicant's City-
issued Business License.
5.24.050 Revocation or Suspension of Establishment Registration Certificate
A. In addition to civil and criminal penalties, Establishment Registration Certificates may be
suspended or revoked upon any of the following grounds:
l. The City has determined that a Establishment Registration Certificate holder has
made a material misrepresentation on the application for an Establishment
Registration Certificate or renewal; or
2. The City determines that the Establishment Registration Certificate holder has
violated any of the provisions of this Chapter, or for any violation of Federal,
State, or local laws, or any conditions of the Establishment Registration
Certificate; or
3. Any employee or independent contractor of the Massage Establishment violates
any provisions of this Chapter.
B. The provisions of this Chapter shall apply to all existing Establishment Registration
Certificates regardless of the date any Establishment Registration Certificate was issued.
C. No Massage Establishment shall be opened at the same address where a Massage
Establishment was closed and/or Establishment Registration Certificate revoked in
violation of any provision of this Chapter, or for any violation of Federal, State, or local
laws, for at least 24 months at location(s) where the closure(s) occurred.
D. Following suspension or revocation, the Police Chief may post a notice of revocation or
suspension on the premises, and the notice shall state the reasons for the revocation or
suspension. The Police Chief may direct the premises to be closed and/or locked, thereby
prohibiting any public access.
E. It is unlawful for any person to conduct the business of a Massage Establishment after the
Establishment Registration Certificate has been suspended or revoked.
5.24.055 Establishment Registration Certificate Revocation or Suspension Hearing
Notice of a revocation or suspension by the City of an Establishment Registration Certificate will
be provided to the Establishment Registration Certificate holder and will contain a statement of
the violation(s) that constitute(s) the basis for such revocation or suspension. The notice will
also include information regarding the steps that must be taken for an appeal.
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A. Appeals to the Police Chief under this Chapter shall be in writing, shall clearly state all
applicable grounds for the appeal, and shall be filed with the City Clerk not later than 15
calendar days following the date of notice of revocation or suspension issued by the
Police Chief.
B. The City will not accept an appeal, and no hearing may be conducted, unless the
appellant has paid a filing fee at the time of serving the appeal papers, in an amount set
by Resolution of the City Council.
C. The scope of the appeal hearing pursuant to this section shall be limited to those issues
raised by the appellant in the appeal papers, as submitted pursuant to Subsection A of this
Section.
D. Ten days after the Police Chief renders a decision, the Establishment Registration
Certificate holder may timely-file a written appeal to the City Manager. The Police Chief
shall set the matter for hearing before the City Manager or his or her designee within 30
days of the receipt of the appeal. Unless mutually agreed, the hearing shall be held not
fewer than 10 calendar days and not more than 30 calendar days from the date of the
appeal request. The hearing may be continued from time to time upon the mutual consent
of the parties.
E. The appellant shall be provided with notice of the time and place of the appeal hearing, as
well as a copy of all relevant materials at least 10 calendar days prior to the hearing.
F. The City will provide a written decision no more than 30 days after the hearing is
conducted.
5.24.060 Re-Application after Denial
After an Establishment Registration Certificate has been revoked or denied, no re-application for
an Establishment Registration Certificate will be accepted within two years from any person,
Applicant, Owner, Operator, Manager, Massage Therapist, Sole Provider, or any other person or
persons, partnership, or corporation who was listed on an Establishment Registration Certificate.
If however an Establishment Registration Certificate was denied for the sole reason that a
Massage Therapist did not maintain CAMTC Certification, re-application may occur after proper
CAMTC Certification has been reinstated.
5.24.065 Exemptions
The provisions of this Chapter shall not apply to the following:
A. Physicians, surgeons, chiropractors, osteopaths, acupuncturists, and physical therapists
duly licensed to practice in the State of California and hospitals, nursing homes,
sanitariums, or other health care facilities duly licensed by the State of California; or
B. Registered or licensed vocational nurses duly registered by the State of California; or
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C. Barbershops and beauty salons; or
D. Accredited high schools and colleges and their employees; or
E. Trainers of any amateur, semi-professional, or professional athlete or athletic team; or
F. Massage Therapy provided by a Massage Therapist according to the terms of a
prescription for certain treatment issued by a California licensed health care provider; or
G. Physical therapy students and Massage Therapy students who are currently enrolled in a
licensed program for physical therapy or Massage Therapy in a State recognized or
accredited school/educational program, and who provide massage services under the
direct supervision of a California licensed instructor; or
H. Owners of stand-alone hotels with more than 100 on-site rooms for rent, which provide
Massage Therapy for their guests onsite by a Massage Therapist.
5.24.070 Massage Establishment Requirements
All Massage Establishments shall comply with the following requirements:
A. Subject to applicable provisions of the Huntington Beach Municipal Code, a legible and
easy to read sign shall be posted at the main entrance of the Massage Establishment
identifying the business as a Massage Establishment; and
B. A minimum level of artificial lighting sufficient to discern the activity occurring in the
Massage Establishment and/or each separate massage room must be present at all times.
This minimum level of artificial lighting is equivalent to an activated 40 watt light bulb in
each approximate 100 square feet of indoor space; and
C. Only equipment and/or chemicals approved by the Orange County Health Department for
disinfecting, cleaning, and/or sterilizing shall be used in the Massage Establishment; and
D. Hot and cold running water shall be provided within the Massage Establishment at all
times; and
E. Clean linen shall be stored in a closed cabinet. Approved receptacles acceptable to the
Orange County Health Department shall be provided for the deposit of used linens; and
F. Only professional massage tables that are generally accepted in the professional massage
industry may placed in massage rooms and utilized for Massage Therapy. No beds,
mattresses, or waterbeds are allowed in Massage Establishments; and
G. All Massage Establishments shall be subject to periodic inspections by the City, or other
government agencies, for compliance with applicable Federal, State, and local health,
safety, and building laws and standards.
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5.24.075 Massage Establishment Operation
Every Massage Establishment shall comply with the following operating requirements:
A. Only a Massage Therapist may provide Massage Therapy; and
B. Massage Therapists must wear their CAMTC issued identification card on the outside of
their clothing and in plain view as a name badge at all times while in the Massage
Establishment. All non-CAMTC Certified employees and/or independent contractors
working at the Massage Establishment must wear a name badge displaying his or her true
and correct name as it is reflected on any govermnient issued document bearing his or her
name; and
C. Massage Establishments may only be open between the hours of 9:00 a.m., and 10:00
p.m. The hours of operation must be displayed in a conspicuous place in the lobby and/or
in any front window clearly visible from outside the Massage Establishment. All
Massages must conclude at or before 10:00 p.m.; and
D. Massage Therapists shall be clothed at all times. Clothing shall be of completely non-
transparent material. Massage Establishment employees and/or independent contractors
may not:
I. Wear attire that substantially exposes the undergarments; or
2. Wear swimsuit attire, unless the Massage Therapist is providing water-based
Massage Therapy approved by CAMTC; or
3. Dress in a manner that exposes the employee/contractor's breasts, buttocks, or
genitals; or
4. Dress in a manner that violates the indecent exposure provisions of the California
Penal Code Section 314 (as may be amended); and
E. A Manager must be present at the Massage Establishment and on the premises at all
times during the Massage Establishment's operating hours; and
F. Towels, linens, and coverings may not be used on more than one patron unless the towel,
linen, or covering has first been laundered and disinfected. Disposable towels, linens,
and/or coverings shall not be used on more than one patron; and
G. Wet and dry heat rooms, stearn or vapor rooms or cabinets, warming appliances, shower
rooms and compartments, and toilet rooms and pools, shall be thoroughly cleaned and
disinfected, and at least once each day the Massage Establishment is open. Bathtubs
shall be thoroughly cleaned after each use; and
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H. Instruments utilized in Massage Therapy shall not be used on more than one patron
unless they have been sterilized using approved sterilizing methods; and
I. The Owner and/or Manager of the Massage Establishment shall keep a complete and
current list/roster of the legal names, residential addresses, and CAMTC Certificate
numbers of all Massage Therapists, and the legal names and residential addresses of all
non-CAMTC Certified employees and/or independent contractors working at the
Massage Establishment. That list shall also include the legal name and residential
addresses of the Manager of the Massage Establishment. This roster shall be kept at the
Massage Establishment premises and be available at all times for inspection by the City;
and
J. Except as provided for in this Chapter, friends, family, and visitors are not allowed in the
Massage Establishment while it is open for business. Only the Owner, Manager,
Massage Establishment employees or independent contractors, and patrons are allowed in
the Massage Establishment during operating hours; and
K. All doors leading into a Massage Establishment or area where Massage Therapy is
performed shall remain unlocked during business hours. Internal offices or areas where
cash or valuables are stored may be locked; and
L. Every Massage Establishment Owner or Operator shall report in writing immediately to
the Police Chief any and all changes of the Massage Establishment address or ownership
of the Massage Establishment; and
M. The following notice shall be posted in a conspicuous place in the Massage
Establishment. The notice must be easy to read to any person, must be displayed in
English and Spanish, and must be visible to anyone entering the Massage Establishment-.
NOTICE TO ALL PATRONS; THIS MASSAGE ESTABLISHMENT AND
THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRIVACY
AND ARE SUBJECT TO INSPECTION BY AUTHORIZED CITY OF
HUNTINGTON BEACH PERSONNEL WITHOUT PRIOR NOTICE.
and
N. A list of all Massage Therapy services and their costs shall be posted in an open and
conspicuous place near the entrance of the Massage Establishment, No Massage
Establishment Owner or Manager shall permit, and no employee or independent
contractor of the Massage Establishment shall offer to perform, any Massage Therapy
services, or charge any fees, other than those posted; and
O. No portion of the Massage Establishment will be used for sleeping/residential purposes;
and
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P. A sign at least 8.5 inches by 11 inches in size, containing the following written notice in
minimum sixteen point font, shall be posted in a conspicuous place in the Massage
Establishment, displayed in English, Vietnamese, Mandarin, Spanish, Cantonese, Korean,
and easy to read by any person entering the premises:
1f you or someone you know is being forced to engage in any activity and cannot
leave—whether it is commercial sex, housework, farm work, construction,
factory, retail, or restaurant work, or any other activity— call the National
Human Trafficking Resource Center at 1-888-373-7888 or the California
Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-
>FRE(EDOM) or 1-888-539-2373 to access help and services.
Victims of slavery and human trafficking are protected under United States
and California Law. These hotlines are:
• Available 24 hours a day, 7 days a week
• Toll-free
• Operated by nonprofit, nongovernmental organizations
• Anonymous and confidential
• Accessible in more than 160 languages
• Able to provide help, referral to services, training, and
general information
5.24.080 Outcall Massames
No Massage Therapy shall be conducted in a hotel or motel room, or in the private residence of
the Massage Therapist. A Massage Therapist is permitted to provide outcall massage services at
a private residence only between the hours of 9:00 a.m. and 10:00 p.m.
5.24.085 Massage Establishment - Prohibited Conduct
In addition to the conduct/activities, items, and/or substances prohibited by Federal and State
Laws, the following conduct is prohibited at Massage Establishments:
A. The sale, service, or consumption of alcohol or marijuana; and
B. Audio and/or video recording of, or monitoring of, the patron, the Massage Therapist, or
the Massage Therapy, without the prior written consent of the patron; and
C. Massage Therapy, touching, fondling, or otherwise intentional contact with the genitals,
breasts of a female patron, or arms of any patron. To perform Massage Therapy on the
breasts of a female patron, the Massage Therapist must have obtained prior written
consent from the patron and a prior written referral from a licensed California health care
provider; and
D. Massage Therapy at any time while breasts of female patrons are uncovered and/or the
genitals of any patron is uncovered; and
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E. Advertising or marketing illegal activity, advertising or marketing sexual content related
to Massage Therapy, or advertising or marketing sexual content in the promotion of the
Massage Establishment; and
F. Use or possession of adult oriented merchandise, including "sex toys" and/or condoms, in
any part of a Massage E stab]islunent; and
G. Any sexual activity at a Massage Establishment.
During the hours of operation, only the client receiving Massage Therapy is allowed in the
massage rooms except as follows: (1) the parents or guardian of a patron who is a minor child
may be present; (2) the minor child of a patron may be present in the Massage Therapy room
with the patron; or (3) the conservator, aide, or other caretaker of a patron may be present in the
massage room.
5.24.090 Inspection by Officials
The City, County, or any investigating official shall have the right to enter the premises of the
Massage Establishment from time to time during regular business hours to conduct reasonable
inspections to enforce compliance with this Chapter and with building, fire, electrical, plumbing,
and/or State and local health and safety regulations.
No person shall refuse to permit or interfere with a lawful inspection of the Massage
Establishment by City or County investigating officials.
5.24.095 Violation—Penalty
Any person violating provisions of this Chapter shall be guilty of a misdemeanor, punishable by
a fine of$1,000.00 or by imprisonment in the County jail for a period not to exceed six months,
or by both such fine and imprisonment. Whenever any City official inspects a Massage
Establishment and fords that any provision of this Chapter has been violated, a notice of such
violation shall be issued by means of a written notice, including, but not limited to, a letter, an
inspection report, a notice of violation, or by issuing a civil or criminal citation for each and
every violation, including those contemplated by this Chapter, and Federal, State, City, and/or
other applicable laws.
5.24.100 Separate Violations
Each violation described in this Chapter, or those provided for by State Laws, shall constitute a
separate violation. Each violation may be charged as a separate count in the event of
administrative or criminal enforcement action. Violations by employees or independent
contractors of Massage Establishments shall be considered violations committed by the Massage
Establishment, and termination of the employee/contractor shall not relieve the Owner or
Establishment Registration Certificate holder of any civil or criminal liability.
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5.24.105 Unlawful Operation Declared Nuisance or Civil Citation
Any Massage Establishment operated, conducted, or maintained contrary to the provisions of this
Chapter and State Laws shall be and the same is hereby declared to be unlawful and a public
nuisance. 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 abatement, removal, or
enjoinment thereof, in the manner provided by law. The City Attorney shall take such other
steps and shall apply to such court or courts as may have jurisdiction to grant such relief as shall
abate or remove such Massage Establishment and restrain and enjoin any Owner, Operator,
Manager, Massage Therapist, or any other person from operating, conducting, or maintaining a
Massage Establishment in the City.
5.24.110 Severability
Nothing in this Chapter is intended to conflict or supersede Division 2, Chapter 10.5 of the
Business and Professions Code as may be amended. If any Section, subsection, phrase, or clause
of this Chapter is for any reason held to be invalid by a Court of law, such judicial decision shall
not affect the validity of the remaining portion(s) of this Chapter. The City Council declares that
it would have adopted this Chapter and each Section, subsection phrase, or clause contained
herein irrespective of the fact that any one or more Sections, subsections, sentences phrases, or
clauses may be declared invalid.
SECTION 2. This ordinance shall become effective 30 days after its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 6 t h day of April , 2015.
Ma
ATTEST: APPROVED ORM:
a
ity CleX City Attorney
JYe AVIE ED A PROVED: INITIATED AND,4APPROVD:
City anager Police Chi
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Ord. No. 4049
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS:
CITY OF HUNTINGTON BEACH )
I, JOAN L. FLYNN,the duly elected, qualified City Clerk of the City of
Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby
certify that the whole number of members of the City Council of the City of Huntington
Beach is seven; that the foregoing ordinance was read to said City Council at a Regular
meeting thereof held on March 16,2015, and was again read to said City Council at a
Regular meeting thereof held on April 6,2015, and was passed and adopted by the
affirmative vote of at least a majority of all the members of said City Council.
AYES: Posey, O'Connell, Katapodis, Hardy, Sullivan, Delgleize, Peterson
NOES: None
ABSENT: None
ABSTAIN: None
I,Joan L.Flynn,CITY CLERK of the City of Huntington
Beach and ex-officio Clerk of the City Council,do hereby
certify that a synopsis of this ordinance has been
published in the Huntington Beach Wave on
April 16,2015.
In accordance with the City Charter of said City -10040)94w,JAlka*)
V - sy
Joan L. Flynn,City Clerk City C k and ex-officio Clerk
Senior Deputy City Clerk of the City Council of the City
of Huntington Beach, California