HomeMy WebLinkAboutCity Council Study Session #1 - Supplemental Communication - 2/17/2015
Staff Recommendations
Massage Establishments
5.25 HBMC and Zoning Change
City Council Study Session
February 17, 2015
Background
Senate Bill 731 (2008):
o Created California Massage Therapy Council
o Reduced local government regulatory authority over
massage establishments and established the CAMTC.
2009 Huntington Beach Amendments:
o Modified Huntington Beach Zoning and Subdivision
Ordinance and Municipal Code to comply with state law.
o From 2009 to 2013, number of massage establishments
increased from 9 to over 50.
o Overwhelmingly, the increase has been illici
establishments acting as brothels.
OMMUNICATION
A
55� 1
2/17/2015
Background
2013 Huntington Beach Amendments:
o Added more restrictions to massage establishments.
o Despite changes, the number of massage
establishments is now over 70 (and still growing).
What's Changed -
California Assembly Bill 1147: !
o Oversight by the CAMTC has proven to be inadequat
and ineffective. X=
o The changes in this bill were the result of considerable
effort by a multitude of municipal staff members from
across the state as well as Huntington Beach, the
California League of Cities Staff and state legislators. :T
s -
o New statute will allow local government more control
over massage establishments which will aid with
enforcement and prevention of illicit
massage establishments.
2
2/17/2015
What is an "Illicit Massage Establishment'
o Massage is a legitimate profession with many
professional therapists working in the field.
Illicit Massage Establishment:
o Massage therapists perform sexual services
for money.
o Workers are potential human trafficking
victims.
The Problem
Large increase in illicit massage establishments:
0 700% growth since 2009.
o The concern is not that "massage establishments" are
opening, the concern is that many are brothels , affect
good businesses, affect Health & Safety, and provide a
negative image to the city.
o Illicit massage establishments have been shown to be
involved in human trafficking.
1�w MOM
2/17/2015
The Problem
PD enforcement effective but limited
o Massage owner applicants are only required to provide
minimal information.
o When civil charges are filed against a business owner,
the business will simply change owners and/or move to
another location in the city.
o City Attorney can declare the location a public nuisance,
but the business will often move to another locatio
under a new name and owner in the city. .
Public Safety Resources .�
Prior to 2008 when HB had 9 Massage Establishments
o PD had 4 Vice Detectives and a Supervisor. �4
Today with 70+ Massage Establishments
o PD has 2 Vice investigators and share a supervisor with ,4
r 4i4
Crime Task Force Unit.
o Resources have been reorganized in an effort to bek
more effective with fewer detectives and civilian staff.
4
2/17/2015
Huntington Beach Illicit Massage
Advertisements
o Illicit Massage Establishment advertisements for
Huntington Beach are increasing and are found in
multiple websites and other media.
Backpage
Craigslist
Humaniplex
OC Weekly
o Illicit customers provide their own reviews of Huntington
Beach Illicit Massage Establishments as well.
Rubmaps
Erotic Review
Huntington Beach Advertisements in Known Illicit W
Grand opening in Huntington Beach-28
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2/17/2015
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6
2/17/2015
Proposed New Application Requirements for
a
Establishment Registration Certificate (ERC)
o Diagram of the configuration of the premise.
o Information for manager in charge, not just owner.
o Acknowledgement from property owner that massage
establishment will be located on the property.
o If a corporation is the owner/partner, information for board member
and stock holders with more than 5% of the stock. ,
o Any additional information deemed necessary.
o Separate application for each owner.
ThJse Wll improve background mvestigations'for new own
� .,ers toy
rvY prevent illicit establishments fromrreopenmg{r
Proposed New Conditions On Massag f
Establishments
o Require Human Trafficking notice be posted as described
52.6 of the Civil Code.
o Human Trafficking has many definitions but is basically
"modern day slavery".
o CAMTC name badges must be worn.
o Reduce operating hours from 8AM-11 PM to 9AM-10PM.
o Require manager to be on-site during all business hours.
o Only owner, employees, and patrons allowed inside
business.
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2/17/2015
Proposed New Conditions On Massa
Establishments
o Engaging in sexually suggestive advertising related to
massage services is forbidden. (AB1147)
o Possession of condoms and other adult items forbidden.
o Non-Massage staff must wear nametags with true name.
o Providing massage of female breasts without the written
consent of the person receiving the massage and a referral
from a licensed California health care provider.(AB1147)
o Alcohol cannot be consumed on the premises.
o Modified clothing requirements for massage technicians to
match state law. (AB1147)
Proposed New Conditions On Massage &_w.�
Establishments ,x .
o Require the use of professional massage tables only. ,
o Require privacy notice be posted.
o Require a list of all massage services and their cost be
posted near the entrance.
P
o Prohibit anyone from engaging in sexual activity while aE
providing massage services for compensation (prevents the
boyfriend-girlfriend defense)(AB1147)
o Prohibit any transfer of ERC while establishment has any
legal issues pending.
OEM am
2/17/2015
Proposed New Revocation Conditions
o Repeated or ongoing violations will allow for massag
permit revocation/suspension.
o Increased time property owner is restricted from rentin
to a massage establishment from 12 months to 24
months.
o Ownership transfer will be frozen while any violations
related to the establishment are pending.
o Extends reapplication period from 12 months to 24
months after denial or revocation.
Existing Zoning Requirements
o Massage Establishments:
o Classified as Personal Service uses
o Permitted by right in all commercial zones
(Commercial General (CG), Commercial Office (CO),
Commercial Visitor(CV))
o Permitted with a CUP and other use restrictions in
Industrial zones
o Permitted by right or administratively in seven
Specific Plan areas
o Most of the 69 existing massage establishments in the
City are located in specific plan areas and in the CG
Two are located in Industrial zones; none are i
CV zones
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2/17/2015
Proposed Zoning Requirements
o Permitted with a CUP subject to Zoning
Administrator approval and a public hearin
in zones where they are currently permitted
or operating:
• Commercial (CO/CG/CV)
• Industrial (IG/IL)
• Specific Plan areas
Proposed Zoning Requirements
Minimum distance
- Massage Esfa6lishmenis _,
0 [ny INu wrgron
between massage
establishments will Y-
be 1,000 feet i
o Potential number
citywide with 1000 Ft. \
radius: 42
.-
��;
LIT
-s ti
10
2/17/2015
Proposed Zoning Requirements
ti
o Amortization Period:
o Existing massage establishments have 5
years to comply
• Requires notification to business
owner/property owner to commence process
• CUP must be obtained within this time period
• Location criteria must be implemented within ,
this time period
HB Municipal Code/HBZSO
o Conclusions:
• Illicit massage establishments exist in
Huntington Beach and the number is growing.
• PD enforcement is effective in temporary
closure of business, but they often re-open.
• City needs more effective long-term strategy to
close existing and prevent new illicit massage
establishments.
• Amending both the Muni-Code and HBZSO will
serve to regulate and limit the number of
massage establishments citywide.
11
2/17/2015
Recommended Action Steps
o Commence process to amend Chapter 5.24 of the
Huntington Beach Municipal Code relating to Massage
Establishments.
o Commence process to amend the Huntington Beach
Zoning and Subdivision Ordinance regulating Massage
Establishments.
c.
�'� �elk
o �
Questio
ns?
L
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12
Respectfully submitted by American Massage Therapy Association -California Chapter
CONTACT:Tony Siacotos, Government Relations Chair
tony@sanmateocountymassage.com
650-678-0710
Inaccuracies in"FAQs with Regards to Implementation of AB 1147"issued by the League of California
Cities, California Police Chiefs Association,California State Association of Counties, and APACA.
On December 3, 2014,the above organizations issued a list of"FAA's"in relation to AB 1147, many of
which were not accurate. The FAQ document includes a cover letter from the bill's authors and gives an
inappropriate air of legitimacy to the FAQ document,even though it contains factual inaccuracies.
Inaccuracies in response to Question No. 1:
This statement is misleading in that it fails to acknowledge that the discretion of cities and counties to
regulate is not unfettered. AB 1147 limits the regulations that cities and counties may impose on
massage therapy establishments, as clearly articulated in Business and Professions Code section 460(a)-
(b) and Government Code section 51034(c)(1)-(10). Additionally,this response fails to cite to the intent
language in Business and Professions Code section 4600.5,which states that the Legislature intends that
local governments impose and enforce only"reasonable and necessary fees and regulations" in keeping
with existing law and being mindful to protect the needs of legitimate owners and massage
professionals, especially sole providers.
Inaccuracies in response to Question No.2:
The response to Question No. 2 misstates the law. It does not accurately summarize what cities and
counties are prohibited from doing,and fails to accurately differentiate between those restrictions that
apply to all massage businesses, and those restrictions that apply just to CAMTC certificate holders.
Government Code section 51034(c)provides the following:
"Nothing contained in this chapter shall authorize a city, county,or city and county to do any of the
following:
(1) Prohibit a person of one sex from engaging in the massage of a person of the other sex.
(2) Define a massage establishment as an adult entertainment business,or otherwise regulate a
massage establishment as adult entertainment.
(3) Require a massage establishment to have windows or walls that do not extend from the floor
to ceiling,or have other internal physical structures, including windows,that interfere with a
client's reasonable expectation of privacy.
(4) Impose client draping requirements that extend beyond the covering of genitalia and
female breasts,or otherwise mandate that the client wear special clothing.
(5) Prohibit a massage establishment from locking its external doors if the massage
establishment is a business entity owned by one individual with one or no employees or
independent contractors.
(6) Require a massage establishment to post any notice in an area that may be viewed by clients
that contains explicit language describing sexual acts, mentions genitalia, or specific
contraception devices.
(7) Impose a requirement that a person certified pursuant to Chapter 10.5(commencing with
Section 4600) of Division 2 of the Business and Professions Code take any test, medical
examination, or background check or comply with education requirements beyond what is
required by Chapter 10.5 (commencing with Section 4600)of Division 2 of the Business and
Professions Code.
(8) Impose a requirement that an individual holding a certificate issued in accordance with
Chapter 10.5(commencing with Section 4600) of Division 2 of the Business and Professions
Code,obtain any other license, permit, certificate, or other authorization to provide massage
1
for compensation. However,this paragraph shall not be construed to prohibit a city, county,or
city and county from requiring by ordinance that a massage business or establishment obtain a
license, permit, certificate,or other authorization in order to operate lawfully within the
jurisdiction.
(9) Impose a dress code requirement on a person certified pursuant to Chapter 10.5
(commencing with Section 4600) of Division 2 of the Business and Professions Code in excess
of those already imposed pursuant to paragraph (10) of subdivision (a)of Section 4609 of the
Business and Professions Code.
(10) Prohibit a person certified pursuant to Chapter 10.5(commencing with Section 4600)of
Division 2 of the Business and Professions Code from performing massage for compensation
on the gluteal muscles, prohibit specific massage techniques recognized by the California
Massage Therapy Council as legitimate, or impose any other specific restriction on
professional practice beyond those set forth in subparagraph (E)of paragraph (1)of
subdivision (a)of Section 4609 of the Business and Professions Code, except as authorized by
Section 460 of the Business and Professions Code." (Emphasis added—provisions in bold are
missing or misstated in the FAQ response.)
Inaccuracies in response to Question No.3:
The response to this question misstates the law. The answer should not be, "Yes," it should instead be,
"It depends." In accordance with Government Code section 51034(c)(7),cities and counties may not,
"Impose a requirement that a person certified pursuant to Chapter 10.5 (commencing with Section
4600) of Division 2 of the Business and Professions Code take any test, medical examination, or
background check or comply with education requirements beyond what is required by Chapter 10.5
(commencing with Section 4600) of Division 2 of the Business and Professions Code." (Emphasis added.)
This section specifically prohibits a city or county from requiring that a CAMTC certified person take a
background check. By imposing that requirement on a CAMTC certified business owner,a city or county
is violating this provision of the law. Cities and counties are free to require background checks for
business owners that are NOT CAMTC certified.
Additionally,while there is no disagreement that a city or county can impose a requirement for a
business license on an independent contractor or an owner of a massage business,the law does not
allow a city or county to impose the requirement for a massage establishment permit or registration
with the police for independent contractors or sole providers in certain circumstances. Business and
Professions Code section 4601(f)defines a "massage establishment" or"establishment" as a "fixed
location where massage is performed for compensation, excluding those locations where massage is
only provided on an out-call basis." Government Code section 51034(c)(8) provides that cities and
counties may require"by ordinance that a massage business or establishment obtain a license, permit,
certificate,or other authorization in order to operate lawfully within the jurisdiction." However,
Business and Professions Code section 4600.5(c) makes it clear that cities and counties are only to
impose reasonable and necessary fees and regulations. Reading all of these provisions together, it is
clear that cities and counties are directed to not impose oppressive and unnecessary requirements for
massage establishment permits or registration with the police. In situations where multiple
independent contractors are working out of ONE fixed business location,then that is the massage
establishment and that is the business that can be required to have a massage establishment permit or
register with the police, not each individual working out of that establishment, even if they are each
independent contractors or sole providers.
2
Inaccuracies in response to Question No.5:
The response to this question fails to point cities and counties towards the legislative intent stated in AB
1147. This response fails to identify the requirement in Business and Professions Code section 4600.5(c)
that, "It is the intent of the Legislature that local governments impose and enforce only reasonable and
necessary fees and regulations, in keeping with the requirements of existing law and being mindful of
the need to protect legitimate business owners and massage professionals, particularly sole providers,
during the transition period after this act becomes law and thereafter for the sake of developing a
healthy and vibrant local economy." (Emphasis added.)
Inaccuracies in response to Question No. 11:
The response to this question fails to address all of the relevant sections of the law applicable to caps.
Under Business and Professions Code section 460(a), no city or county shall prohibit a person or group
of persons certified by CAMTC from engaging in their business,occupation, or profession, or any portion
of that business, occupation, or profession. This provision means that cities and counties cannot
completely ban CAMTC certificate holders from engaging in the business of massage, impose
moratoriums on the massage businesses of CAMTC certificate holders (including stopping them from
replacing certificate holders that have left the business or expanding the business), place caps on the
number of massage businesses of CAMTC certificate holders in a jurisdiction, nor can a city or county
completely ban the provision of outcall massage services or other portions of a massage business
engaged in by CAMTC certificate holders without violating this provision of law.
Inaccuracies in response to Question No. 18:
The response to this question is not complete. Cities and counties are free to ban condoms on the
premises of massage businesses as long as that requirement isn't part of a regulation that defines or
regulates a massage business as adult entertainment. Regulation of a massage business as adult
entertainment would be a violation of the law.
Inaccuracies in response to Question No.22:
The response to this question misstates the law. Imposing a moratorium on massage businesses
violates both the intent and specific statutory language of AB 1147. Business and Professions Code
section 4600.5(c) provides that, "It is the intent of the Legislature that local governments impose and
enforce only reasonable and necessary fees and regulations, in keeping with the requirements of
existing law and being mindful of the need to protect legitimate business owners and massage
professionals, particularly sole providers,during the transition period after this act becomes law and
thereafter for the sake of developing a healthy and vibrant local economy." (Emphasis added.) Cities
and counties have therefore been directed to only impose reasonable and necessary regulations and to
protect legitimate businesses. Additionally, under Business and Professions Code section 460(a), no city
or county shall prohibit a person or group of persons certified by CAMTC from engaging in their
business, occupation, or profession,or any portion of that business, occupation, or profession. We
interpret these provisions to mean that cities and counties cannot completely ban CAMTC certificate
holders from engaging in the business of massage or impose moratoriums on the massage businesses of
CAMTC certificate holders(including stopping them from replacing certificate holders that have left the
business or expanding the business),without violating the law.
3
Inaccuracies in response to Question No.24:
The response to this question misstates the law and fails to accurately describe the legal basis for a
suspension and how the process works. In accordance with Business and Professions Code section
4610(f), if CAMTC received notice that a certificate holder has been arrested AND charges have been
filed for 647(b) -Prostitution or an act punishable as a sexually related crime the certificate of that
person will be immediately suspended. The suspended certificate holder, any business that CAMTC has
in its records as employing the suspended certificate holder, and the city or county where the
certificate holder lives or works will be notified of the suspension. If the suspended certificate holder is
convicted of 647(b)-Prostitution, an act punishable as a sexually related crime, or is required to
register as a sex offender in California or another state, CAMTC will permanently revoke the certificate.
If, however,the suspended certificate holder is not convicted of 647(b)- Prostitution, an act punishable
as a sexually related crime,or is not required to register as a sex offender in California or another state,
then by law CAMTC is required to re-instate the suspended certificate. In these situations, CAMTC may
still proceed with disciplinary action against the certificate holder(including revocation, suspension,
imposition of conditions, etc.) if it has evidence that the certificate holder has violated another provision
of the Law.
Inaccuracies in response to Question No.28:
This question is poorly stated and the response therefore is nottechnically correct. Technically,AB 1147
applies to all massage professionals, because it has a provision stating that cities and counties can
regulate those who are not CAMTC certified, and there are portions of Government Code section 51034
that apply to all massage businesses, regardless of the certification status of the owners.
The real question is: Does CAMTC have jurisdiction over massage professionals that are not CAMTC
certified?
The answer to this question is: CAMTC only has jurisdiction over applicants and certificate holders.
CAMTC does not have jurisdiction over massage businesses.
4
[. i t s..`....3 U E, *wb 5
December 3,2014
To: City and County Officials
From: Assembly Members Susan Bonilla,Jimmy Gomez and Chris Holden
Re: Implementation of AB 1147
As authors of AB 1147,we carried this legislation in order to return broad control over land use to local
governments in regulating massage establishments in the best interests of the individual community.
While the bill does not go into effect until January 1,2015, many jurisdictions are considering,or are in
the process of updating their ordinances. There have been numerous questions regarding what AB 1147
authorizes and what it prohibits. As authors of this bill,we have worked together with the League of
California Cities,the California State Association of Counties,the American Planning Association,
California Chapter and the California Police Chiefs Association to help answer some of these questions.
The answers to these questions are presented for informational purposes only and do not constitute
legal advice from the organizations involved with putting together this document. Each jurisdiction
should consult with its city attorney/county counsel to gain a complete understanding of AB 1147,its
impact on the existing ordinances,and its legal authority to regulate massage therapy businesses.
5incereiy,
The Honorable Susan Bonilla T nbr- le Jim omez The Honorable Chris Holden
Assembly Member, 14`h District Assembly Member,515L District Assembly Member,415t District
B
/L� EAG E
F CALIFORNIA
tCITIES
FAQs with Regards to implementation of AS 1147
The answers to these FAQs are presented for informational purposes only and do not constitute legal advice from the
organizations involved with putting together this document. Each jurisdiction should consult with its city
attorneylcounty counsel to gain a complete understanding of AB 1147,its impact on the jurisdiction's existing
ordinances,and its legal authority to regulate massage therapy businesses. The provisions of AS 1147 take effect
January 1,2015.
1) Q:Is a massage business that only uses certified massage professionals exempt from local regulation?
A: No. Article XI,section 7 of the California Constitution as well as Business and Professions Code section 460(c).
Government Code section 37101, Business and Professions Code 16000 and Government Code 51034 all recognize
the authority of a city to regulate businesses that provide massage therapy services. Under AB 1147,cities and
counties may regulate the business that provides the massage therapy services and California Massage Therapy
Council(CAMTC) may regulate the individuals who apply for certification to provide massage therapy services. This
division of authority and responsibility is reflected in the following statement of legislative intent: "it is the intent
of the legislature that broad control over land use in regulating massage establishments be vested in local
governments so that they may manage those establishments in the best interests of the individual community,and
that the requirements and practice of the profession of massage remain a matter of statewide concern,regulation,
and oversight'(Business&Professions Code 4600.5(b)).
2) Q. What limitations does AS 1147 impose on local regulation of certified massage professionals?
A. A local jurisdiction may not(1) prohibit a person of one sex from engaging in the massage of a person of the
other sex; (2)define a massage establishment as an adult entertainment business,or otherwise regulate a massage
establishment as adult entertainment;(3) require a massage establishment to have windows or wails that do not
extend from the floor to ceiling or have other internal physical structures(such as windows)that interfere with a
client's privacy;(4) impose client draping requirements or otherwise require clients to wear special clothing; (5)
prohibit a massage establishment from locking its external doors if the business is owned by one individual with
one or no employees; (6) require a massage establishment to post any notice in an area that may be viewed by
clients that contain explicit sexual language;(7)require a person certified by CAMTC to take any test,medical
examination,or background check; (8)require a person certified by CAMTC to get a license, permit,or other
authorization to provide massage unless that person is a business owner; (9)impose a dress code stricter than that
imposed by AS 1147;or(10)prohibit massage techniques permitted by CAMTC(Government Code 51034(c)).
3) Q:Can a jurisdiction require independent contractors,sole providers,and owners of a massage business to
obtain a business license, massage permit,register with the police,or get a background check?
A:Yes. Under Government Code 51034(c)(8), a city may require a massage business owner,including a sole
provider or independent contractorwho is CAMTC certified,to obtain a business license,and/or massage permit or
other entitlement to carry on the business of massage therapy. Independent contractors in the"business"of
providing massage therapy can be regulated as a "business."
4) Q:As part of its regulation of massage therapy businesses,can a jurisdiction require the business owner to
provide a current listing of its employees and independent contractors,their CAMTC certifications and other
relevant information?
12/0312014
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,
^
A:Yes. A jurisdiction's business regulation,ordinance may require a business owner tosubmit a list mf all ofits
employees and independent contractors,their certification statu4andnodfy the local government whenthis
information changes.
5} Q:Can m jurisdiction require o conditional use permit(0UF)for massage businesses?
A: Yes. Business and Professions Code 460(c)provides explicit authorization to adopt land use regulations
pertaining to massage businesses. Ajurisdiction may amend its zoning ordinance to require a CUP for amassage
business However,a jurisdiction may not impose,conditions on the conditional use permit that would violate the
provisions of Government Code S1O34(c)(1)'(18)mu described in Question No.2. An application for a CUP for a
massage business would be considered under the same procedures provided in the jurisdiction's zoning,ordinances
for other uses for which a CUP isrequired.s Jurisdictions should review their zon(ngordinances to-determine
whether a massage business in operation prior to January 1,2015 is a lawful non-conforming use.
@\ Q:Can a jurisdiction impose a restriction mn the location mfe massage business?ie'300 feet from e school,park
etc.
A: ABI147 gives local governments broad authority to use its Constitutional police power tuselect zoning districts
that are most appropriate for massage. However,a jurisdiction may not define or otherwise regulate amassage
establishment as"adult ertcrtainmment." A zoning ordinance that imposes a restriction on the location ofa
massage establishment such as 300 feet from a school or park will be reviewed under a "reasonable and not
arbitrary" standard.
J\ Q. Can a jurisdiction require tm obtain a business
license,massage permit,register with the police,mr get mbackground check?
' A. No. Ajurisdiction may not.require an individual massage therapist who holds acertificate from CAK4TC and
operates as an employee to obtain any kind of license or permit or meet any other educational requirements,or to
register with the police or submit to a background investigation(Government Code 51034(c)(8)).
8} Q:What is the best way tm make sure that only CAMTC-certiGedmassage professionals work inmmyjurisdiction?
A. AB 1147 separates the certification of massage therapists from the regulation of massage businesses. The
certification of massage therapists iu the responsibility of the CAKXT[. Thm-negu|ationofrnasnagebusinassesis the
responsibility of local jurisdictions. Therefore,the best way to make sure that only CAM7C'certifiedmassage
professionals work ioa jurisdiction istu adopt an ordinance that requires massage businesses to use[AK0T['
� certified massage profeos[ona|sonly. Another way is10 adopt an ordinance that prohibits a person from working in
the jurisdiction as a massage therapist without a certificate issued by CAMTC. Because it's possible that the latter
way might be interpreted ao conflicting with the CAMTC's role in certifying massage therapists,we,believe that
imposing the restriction on the business ispreferable.
9) Q:Can jurisdictions regulate the hours wf operation wfa massage business?
A,Yes. Jurisdictions can specify hours of operation based upon such factors as a commercial use in a residential
neighborhood or other reasonable requirements.
208 Q:Can a jurisdiction prohibit a massage professional from working out of his mr her home?
A: A jurisdiction can impose restrictions on massage professionals working out of their homes in the same manner
that a jurisdiction regulates other professionals or business owners operating out of their homes. Some local
governments regulate business owners operating from their homes through a home-occupation permit.
11) Q:Can jurisdiction limit the number of massage establishments in its jurisdiction?
A:A jurisdiction may limit the number of massage establishments in its jurisdiction,if the jurisdiction is able to
articulate a reasonable basis for the cap.
12) Q:Is a jurisdiction prohibited from requiring physical improvements,such ae transparent exterior windows?
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A: No. However, a list of physical improvements that may not be required is described in the answer to Question
#2.
13) Q:Can a jurisdiction adopt regulations to prohibit a massage business from opening in the same location as a
previous business with illegal activity?
A:Yes,if there is a reasonable basis for this regulation.
14) Q:Can a jurisdiction adopt regulations holding the owner accountable for the actions of its employees and
independent contractors?
A:Yes. An ordinance regulating massage businesses may include a provision holding the business owner
responsible for how the business is conducted by its employees or independent contractors. In addition, Business
and Professions Code section 4607 provides that CAMTC may discipline an owner or operator of a massage
business or establishment who is CAIVITC-certified for the conduct of all individuals providing massage for
compensation on the business premises.
15) Q:May a jurisdiction impose land use regulations on massage businesses that are different than those imposed
on other professional services?
A:Yes. This is one of the most significant changes to the law made by AB 1147. Prior to AB 11.47,jurisdictions were
allowed to regulate businesses using certified massage professionals only to the extent that the jurisdiction
uniformly applied those regulations to all other business professionals. This is no longer the law.
16) Q:Can a jurisdiction enter massage establishments and make reasonable inspections?
A: Yes, Jurisdictions can conduct reasonable inspections as part of its ordinance requirements as well as recover
the reasonable costs of these inspections and other regulatory requirements.
17) Q:Is a conditional use permit fee of$20,000-$30,000 legal?
A: It depends. Fees,charges and rates are generally imposed in return for a specific benefit conferred or privilege
granted. A local government has the authority to impose fees, charges and rates under its police power through
California Constitution Article X1,§7. A fee may not exceed the estimated reasonable cost of providing the service
or regulatory act for which the fee is charged. A fee that does exceed such cost may be considered a special tax. In
addition,fees,charges and rates must be reasonable, fair and equitable in nature and proportionately
representative of the costs incurred by the regulatory agency. AB 1147 includes the following statement of
Legislative intent: "it is the intent of the Legislature that local governments impose and enforce only reasonable
and necessary fees......
18) Q:Can a jurisdiction prohibit condoms on the premises?
A: Yes. A jurisdiction can prohibit condoms on the premises of a massage establishment as a standard in its
ordinance if there is a reasonable basis for this requirement.
19) Q.How can a jurisdiction handle a massage business that(after a police sting and surrender of the business
license)transfers the business to another individual?
A: A jurisdiction may include in its ordinance a requirement that prohibits a massage business permit from being
transferred without notice to and consent of the local government.
20) Q;Can a jurisdiction adopt and enforce a dress code for massage therapists?
A: Yes, AB 1.147 includes certain restrictions on how certified massage therapists may dress. A jurisdiction may
include those restrictions in its ordinance. Be aware, however,that a jurisdiction may not include stricter
requirements for certified therapists, If dress code restrictions are included in a jurisdiction's ordinance,and an
employee violates those restrictions, then the jurisdiction may enforce those provisions of its ordinance against the
business as it determines appropriate. Violations of a municipal code may be enforced civilly, criminally, or through
administrative enforcement. A jurisdiction is also encouraged to use the procedure outlined in question no, 23 to
notify CAMTC of a violation.
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21) Q:What impact will AB 1147 have on existing massage businesses?
A: Each jurisdiction should carefully review the provisions of its municipal code regarding non-conforming uses of
land and imposing new regulations on existing businesses.
22) Q:Can a jurisdiction impose a temporary moratorium on approval of massage businesses?
A:Yes. AB 1147 takes effect on January 1,2015. State law allows a city to adopt an interim ordinance that
prohibits otherwise allowed uses when those uses conflict with a pending land use study. Such a measure requires.
a 4/5 vote of the jurisdiction; must contain a finding that there is a current and immediate threat to the public
health, safety or welfare;and may be adopted without following the notice and adoption procedures required for
other ordinances. The measure has an initial duration of 45 days and may be extended as specified by Government
Code 65858. Jurisdictions should exercise.caution before imposing a temporary moratorium if they have previously
adopted a moratorium on the approval of massage businesses.
23) Q:Is there a process for a jurisdiction to follow if it wishes to inform CAMTC that it believes that a certified
massage therapist is in violation of state or local law?
A:Yes. A city is encouraged to report that information to CAMTC by going to CAMTC's homepage(www.camtc.org)
and clicking on the link to"file a Complaint Against a CAMTC Certificate Holder."
24) Q:If a massage therapist with a CAMTC certificate is arrested for prostitution-or violating the Sex Offender
Registration Act,will his or her certificate be revoked?
A: If CAMTC receives notice that a certificate holder has been arrested and charges have been filed alleging
prostitution or a violation of the Sex Offender Registration Act,the council is required to immediately suspend the
certificate and notify the city or county in which the certificate holder lives or works of the suspension. if the
person is convicted,the certificate is permanently revoked. If a certificate holder commits a different act that is
punishable as a sexually related crime or otherwise violates provisions of AB 1147,CAMTC may(but is not required
to)take disciplinary action including,for some violations, suspending the certificate,
25) Q:Who should jurisdictions report violations to?
A: Violations of local ordinances should be prosecuted administratively,civilly,or criminally in accordance with the
provisions of the jurisdiction's municipal code. if a jurisdiction believes that a CAMTC certified massage therapist is
violating state law, then the jurisdiction is additionally encouraged to inform CAMTC as described under question
no.23.
26) Q. What prompts the inspection/investigation of a massage therapy school that could change the status to
"unapproved"?
A: CAMTC explains that when it receives credible information alleging that the massage therapy school has violated
one of the provisions of its Procedures for Un-Approval of Schools(available at www.camtc.org/Schools.aspx); this
information prompts the investigation of a school. CAMTC also looks for anomalies or changing patterns in
applications and transcripts that may warrant investigation.
27) How does CAMTC obtain the actual certificate of those persons whose certification has been suspended or
revoked?
A: CAMTC explains that it requests that revoked certificate holders return their certificates and ID cards to CAMTC.
In order to check whether a specific person has an active and valid CAMTC certificate, local jurisdictions can check
the"Verify Certification" link on CAMTC's website.
28) Q. Does AB 1147 apply to massage therapists who do not have a CAMTC certificate?
A. No. AB 1147 only applies to massage therapists who have a CAMTC certificate. AB 1147 does not affect the
authority of a city to regulate massage therapists who do not have CAMTC certificates or massage businesses who
employ massage therapists who do not have CAMTC certificates.
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