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.
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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."
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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
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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:
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"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
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of the Carlsbad Municipal Code is amended by the amendment
of Subsection (b) to read as follows:
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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:
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"(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:
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"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:
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9
lO
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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