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HomeMy WebLinkAboutAgenda: Study Session Item a: Massage Therapist Regulations.CJ~ CollN x c�morco� Au6usC 190 5, LYU3 °�'�2°,ityof °0 STAFF REPORT Development Services Department DATE: March 5, 2013 TO: Honorable Mayor and City Council FROM: Jason Kruckeberg, Assistant City Manager /Development Services Director By: Jim Kasama, Community Development Administrator SUBJECT: REPORT, DISCUSSION, AND DIRECTION ON MASSAGE THERAPIST REGULATIONS — ARCADIA MUNICIPAL CODE SECTIONS 6418 ET SEQ. Recommendation: Amend Regulations to Comply with State Law SUMMARY The City of Arcadia's Massage Therapist Regulations were initially adopted in November of 2002 (Ordinance No. 2163) and have been revised four times in response to changes in State laws; most recently, in August of 2009 (Ordinance No. 2260). Since then, the State has enacted two new pieces of legislation, AB 619 in August of 2011, and SB 1238 in September of 2012. Both of these new laws restrict the abilities of local agencies to regulate massage therapists that are certified by the State, and the City's regulations need to be revised to be in compliance with the new State laws. It is recommended that the City's Massage Therapist Regulations be amended to comply with State law, but that the City retain the ability to regulate massage therapy to the fullest possible extent. BACKGROUND The City's current Massage Therapist Regulations include requirements and procedures for the issuance of a City of Arcadia Verification Card. A Verification Card is issued after the Arcadia Police Department has completed a background check and verified the authenticity of either a State - issued Massage Certificate, or a City- issued Massage Therapist Identification Card. The City's regulations also include several operational requirements for businesses that provide massage therapy; for instance, massage being limited to an incidental portion of the overall business, medical offices being limited to a maximum of two (2) massage therapists, massage therapy not being allowed between 9:00 p.m. and 7:00 a.m., massage businesses being subject to inspections and searches, minimum lighting requirements, and maintenance of records of employees and customers. The combination of the Verification Card requirement, the Massage Therapist Regulations — Study Session March 5, 2013 Page 2 of 3 operational regulations, and a regular inspection program has proven successful in deterring illicit activities at massage therapy establishments in the City of Arcadia. Assembly Bill 619, which became State law in August of 2011, formally established the California Massage Therapy Council (CAMTC) and charged it with the issuance and enforcement of Massage Certificates as well as overseeing the training required for such Certificates. AB 619 made the requirements for State - issued Certificates stricter and established clear discipline procedures. Senate Bill 1238, which became effective January 1, 2013, clarified the procedures by which the CAMTC may suspend, revoke, or otherwise discipline a certificate holder upon receipt of clear and convincing evidence of the commission of an act punishable as a sexually - related crime related to the qualifications, functions, or duties of the certificate holder. DISCUSSION While AB 619 and SB 1238 have made the qualifications for the State - issued Massage Certificates stricter, the legislation also precludes local agencies from requiring separate background checks or other authorizations in addition to those carried out by the CAMTC. A basic business license can be required; provided, however, that the fee and requirements are the lowest of, and no different from, those required of any other profession or personal service business. Therefore, the requirements for a background check, fingerprinting, and a City of Arcadia Verification Card cannot be imposed upon a massage therapist that is certified by the CAMTC unless it is done free of charge and does not unduly delay the applicant's business operations. The City's zoning regulations currently group massage therapy with Personal Service Businesses, which include barbers, hair stylists, manicurists, estheticians, etc., and such Personal Service Businesses are required to have an approved Conditional Use Permit (CUP). AB 619 and SB 1238 preclude the requirement of a CUP for massage therapists certified by the CAMTC, unless a CUP is also required not only for all other personal service businesses, but for all other businesses and professions regulated by the State Corporations Code, which includes doctors, dentists, nurses, accountants, architects, attorneys, etc. AB 619 and SB 1238 also include provisions that preclude the establishment and enforcement of rules and regulations on CAMTC - certified massage therapists that are not likewise imposed on the other businesses regulated by the State Corporations Code. For instance, the City's Massage Therapist Regulations include numerous operational provisions — such as massage being limited to an incidental portion of the overall business, medical offices being limited to a maximum of two (2) massage therapists, massage therapy not being allowed between 9:00 p.m. and 7:00 a.m., massage businesses being subject to inspections and searches, minimum lighting requirements, and maintenance of records of employees and customers. None of these operational requirements are imposed on any other businesses by the Arcadia Massage Therapist Regulations — Study Session March 5, 2013 Page 3 of 3 Municipal Code. Under the new laws, the City would either have to impose such requirements on every business or remove the requirements from massage uses. Of note, AB 619 and SB 1238 apply only to sole - proprietorships that are certified by the CAMTC, or to massage therapy businesses that employ, or use only therapists certified by the CAMTC. Therefore, it may be that day spas, or other personal service businesses that combine massage therapy with other personal services, may still be subjected to the requirement of a CUP, as well as the other operational requirements stipulated by the City's current Massage Therapist Regulations. As such, all methods for retaining a CUP requirement for massage therapy businesses that still complies with the new State legislation will be explored. Additionally, since AB 619 and SB 1238 do not make State - certification mandatory (State law provides for voluntary certification until at least January 1, 2015) the City - issued Massage Therapist Identification Card process can be retained, which would enable the imposition of the existing operational requirements on non - CAMTC - certified massage businesses. Furthermore, any business, including a massage therapy business, whether CAMTC - certified, or City - certified, that violates any applicable regulations or laws, may have its business license revoked or suspended by the City's Business License Officer. FISCAL IMPACT Changes to the City's Massage Therapist Regulations to comply with State law will likely reduce the number of applications for Conditional Use Permits, City- issued Massage Therapist Identification Cards, and Verification Cards. This will reduce the amount of fees accrued by the Development Services Department, and the Police Department. However, these fees are not a significant portion of the revenues for these Departments and are only imposed to cover the time and materials associated with reviewing and enforcing these entitlements. There will likely be an increase in massage businesses due to the relaxation of the regulations and an increase in inspections to comply with the new State laws. This could result in increased Police responses and costs if the CAMTC does not stringently enforce its standards. RECOMMENDATION It is recommended that the City's Massage Therapist Regulations be amended to comply with State law, but that the City retain the ability to regulate massage therapy to the fullest possible extent. 3 Doanic Lanza �f City Manager