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HomeMy WebLinkAbout1979-02-20; City Council; 1097-1; Revision of Massage Parlor RegulationsCITY OF CARLSBAD AGENDA BILL NO. _LO 9 7 · 4 ,a..,,,,...L,e J # / DATE: February 20, 1979 DEPARTMENT: City Attorney SubJect: REVISION OF MASSAGE PARLOR REGULATIONS statemer.t of the Matter Initial: Dept. Hrla-.--- c. Atty.yFB C. Mgr. JgCf; In 1973 the City Council added Chapter 5.16 to the Carlsbad Municipal Code which contained a comprehensive set of regulations for massage parlors and massage technicians. Although there was some question as to the City's authority in adopting those regulations, they have been effectively enforced in Carlsbad without challenge. In 1976, legislation was adopted empowering a City to adopt an ordinance for the licensing and regulation of the business of massage (Govern- ment Code Section 51032 through 51034). This legislation, which contains licensing standards and specifies grounds for the denial of licenses, has been amended several times. The Assistant City Attorney has reviewed our ordinance and recommended some changes to bring it into accord with the enabling legislation. The ordinance and his memorandum explaining the changes are attached. · Exhibits Assistant City Attorney memorandum dated January 26, 1979 to City Attorney. Ordinance No. 3 J I :l, · Recommendation That the City Council introduce Ordinance No • .3//,:Z . Counci 1 Action: 2-20-79 Ordinance No. 3112, amending the Municipal Lode to revise the regulations regarding massage establishments and massage technicians, was introduced for a first reading • . 3-6-79 Council adopted Ordinance No. 3112. 7 fil MEMORANDUM DATE: January 26, 1979 TO: City Attorney FROM: ~ssistant City Attorney SUBJECT: REVIEW OF MASSAGE PARLOR ORDINANCE With regard to the majority of t~1e massage parlor ordinance there are no changes that need to be made. I would suggest with regard to Section 5.16.020 that the ~tfinition of "massage" be amended to include after the last word "means": "excepting such rubbing, stroking, kneading, pounding or tapping of the human body as may be prohibited by State Law." The reason for this amendment is basically to fore- stall any argument that might be made by certain Counsel should the issue ever arise in Carlsbad regarding prostitution activities out of massage parlors. It has been my experience in the past that some Courts and attorneys have taken the definition of a massage, as outlined in the Massage Parlor Ordinance of the City of San Diego, which is ~imilar to that of the City of Carlsbad, and argued that the definition of massage includes masturbation and, therefore, masturbation cannot be a lewd act. The argument in my mind is bogus, but it has arisen and certain Judges in the Municipal Court of San Diego have followed it. However, that change is really more preventa- tive than anything else. Regarding Section 5.16.080, a revision will have to be made to Subsection(b), Paragraphs(2) and (3). Paragraph(2) must be amended following the comma after "California Penal Code" to read: "Section 266i, 315, 316, 318 or Subdivision(b) of Section 647." Further, Section (3) will have to be amended to delete the prohibition against registration under Section 11850 of the California Health and Safety Code. The ordinance should be changed to read: "For any violation of Section 11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code." 7 - City Attorney -2-January 24, 1979 There are two other suggestions I would make for revision of the Code. First, that the conviction requirements apply not only to applicants but also to employees or any other massage personnel. Second, directors, officers or principal share- holders of corporatic,ns are not included within the individuals covered by Section 5.16.080. That could be easily remedied by adding under the definitional section a definition of the word "applicant" to include the in:iividual owning or operating the massage parlor or any director, officer or major share- holde~ of a corporation which has applied for a massage parlor license. The only other suggestion I would make would be that we put in a severability clause such that if any portion of the ordinanci· declared unconstitutional that the re:S\. of the they in nee shall not be declared unconstitution~l. /. f ( / f7 -- '---A::,:l~/4 ~~0~~:::;¼;,~15,:::::--).------ oA'1-l~E 1 .etiitKTsh KE Assistant City Attorney DSH/m:la ORDINANCE NO. 311=2 __ AN ORDINANCE ~F THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING TITLE 5, CHAPT?;R 5 .16 OF THE CAR!.SBAD MUNICIPAL CODF BY AMENDMENT, CELETION AND ADDITION OF VARIOUS SECTIONS TO .REVISE THE REGULATIONS REGARDING MASSAGE ES'Ij"\BLISI:MENTS AND MASSAGE •rECHNICIANS. The City Gcuncil of the City of Carlsbad, California 7 dues ordain as follows: 8 S~CTION 1: That Chapter 5.16 of the Carlsbad Municipal 9 Code is hereby reenacted in its entirety except as amended 10 by this ordinance. 11 SECTION 2: Thc1t Title 5, Chapter 5 .16 of the Carlsbad 12 Municipal Code is amended by the amendment of Section 5.16.010 13 to add the following: 14 15 17 "The business of massage is hereby designated 'Police regulated' • This o:::-dinance is adopted pursuant to Chapter 6, Part 1, of Division 1 of Title 5 (Sections 51030 through 51034) ot the California Government Code." SECTION 3: That Title 5, Chapter 5.16, Section 5.16.020 18 of the Carlsbad Municipal Code is amended by the amendment 19 of Subsection (a) to read as follows: 20 11 (a) 11 Massage 11 means the administration by any person of any method or procedure oi exe~ting or applying pressure, 21 friction, moisture, heat or cold to the external parts of the human body by any physical or mechanical means, excepting 22 such rubbing, stroking kneading, pounding or tapping of the human body by any physical or mechanical means and with or 23 without the use of any ointments, liniments, oils, alcohols, or other substances as may be prohibited by State Law." SECTION 4: That Title 5, Chapter 5.16, Section 5.16.080 25 26 of the Carlsbad Municipal Code is amended by the amendment of Subsection (b) to read as follows: 27 /// 28 /// l "(h) That the applicant, if an individual, or in the 2 cci:::e of an applicant which is a corporation o:r. a partnership, any of its officers, .directors, holders of te:i perce.1t or 3 more of corporation stoc!{, has not been convicted in a court of competent jurisdiction of: 4 (1) An offense involving the use of force or violence upon the person of another, or 5 (2) A cri1·. requir:~ng regist.n.tion under Section 290 of the California Penal Code, or of any violation of Sections 6 266i, 315, 316, 318 or Subdivision (b) of Section 647 of the Penal Code, or 7 (3) Any felony offense involving the sale of a controlled substance specified in Sections 1105~, 11055, 8 11056, 11057, or 11058 of the Health and Safety Code, or (4) Any of the above substantive offenses as 9 defined in the laws of any jurisdiction other than the State of California." 10 SECTION 5: That Title 5, Chapter 5.16, Section 5,16.220 11 of the Carlsbad M · · J c a · d a b th " t unicipa. o e is amen e y e amenamen 12 of Subsection (a) (2) and subsection (a) (3) to read as follows: 13 14 15 "(2) Any crime requiring registration under Section 290 of the California Penal Code, of any violations of Sections 266i, 315, 316, 318 or Subdivision(b) of Section 647 of the Penal Code. 1 6 (3). Any felony offense involving the sale of a controlled substance specified in Sections 11054, 11055, 11056, 11057 17 or 11058 of the Health and Safety Code." 18 SECTION 6: That Title 5, Chapter 5.16, of the Carlsbad 19 Municipal Code is amended by the addition of Section 5.16.360 20 to read as follows: 21 22 23 24 25 26 "5.16.360 Constitutionality. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The Council hereby declares that it would have adopted the chapter and each secticn, subsection, sentence, clause or phrane thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid." EFFECTIVE DATE: This ordinance shall be effective 27 thirty days after its adoption and ~he City Clerk shall 28 certify to the adoption of this ordinance and cause it to be published at least once in the Carlsbad Journal within fifteen 2. l days after its adoption. 2 INTRODUCED AND FIRST READ at a regular meeting of the 3 Carlsbad City Council held on the 20th day of February , 1979 4 and t:1erec1fter 5 PASSED AND ADOPTED at a regular meeting of the City Council 6 held on the 6th 7 vote, to wit: 8 9 lO 11 12 AYES: NOES: ABSENT: 13 ATTEST: 14 (SEAL) day of __ ~M~a~r~c~h ___ , 1979 by the following Councilmen Packard, Skotnicki, Anear, Lewis and Councilwoman Casler None None