Item 9 June 20, 2012 Planning and Development Department Land Use Planning Division 2120 Milvia Street, Berkeley, CA 94704 Tel: 510.981.7410 TDD: 510.981.6903 Fax: 510.981.7420 E-mail: [email protected]STAFF REPORT DATE: June 20, 2012 TO: Members of the Planning Commission FROM: Wendy Cosin, Deputy Director SUBJECT: Chair Massage as an Incidental Use Recommendation Consider the new definition and the proposed process for allowing Chair Massage as an Incidental Use to retail uses, provide feedback to staff, and direct staff to set the matter for a public hearing or return with additional information. Background The City Council referred code amendments regarding Chair Massage to the Planning Commission on March 8, 2011. The concern raised in the Council item is that Chair Massage that is incidental to another business should be regulated differently than a Massage Establishment that is not incidental to another use. In particular, it is not unusual for grocery or drug stores to offer Chair Massage services. A copy of the referral is attached. Discussion Massage is regulated in two places in the Municipal Code: Chapter 9.32, Massage Therapy (part of Title 9, Business Licenses and Regulations), which describes the required professional certificates, Police Department investigations, and Finance Department permits. Land use regulations are included in the Zoning Ordinance. In the Zoning Ordinance, massage is included as a type of use allowed in a Medical Practitioner Office, as listed in the following definition (emphasis added): Medical Practitioner Office: Clinics or offices for doctors, dentists, chiropractors, optometrists, osteopaths, chiropodists, or similar practitioners of the traditional healing arts, as well as practitioners of a non-traditional nature,
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Item 9 June 20, 2012
Planning and Development Department Land Use Planning Division
Recommendation Consider the new definition and the proposed process for allowing Chair Massage as an Incidental Use to retail uses, provide feedback to staff, and direct staff to set the matter for a public hearing or return with additional information.
Background The City Council referred code amendments regarding Chair Massage to the Planning Commission on March 8, 2011. The concern raised in the Council item is that Chair Massage that is incidental to another business should be regulated differently than a Massage Establishment that is not incidental to another use. In particular, it is not unusual for grocery or drug stores to offer Chair Massage services. A copy of the referral is attached. Discussion Massage is regulated in two places in the Municipal Code:
Chapter 9.32, Massage Therapy (part of Title 9, Business Licenses and Regulations), which describes the required professional certificates, Police Department investigations, and Finance Department permits.
Land use regulations are included in the Zoning Ordinance.
In the Zoning Ordinance, massage is included as a type of use allowed in a Medical Practitioner Office, as listed in the following definition (emphasis added):
Medical Practitioner Office: Clinics or offices for doctors, dentists, chiropractors, optometrists, osteopaths, chiropodists, or similar practitioners of the traditional healing arts, as well as practitioners of a non-traditional nature,
Chair Massage Item 9 June 20, 2012
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including, but not limited to, acupuncturists, herbalists, nutritionists, midwives, reflexologists, iridologists, physical therapists, bodyworkers, but not including offices for veterinarians or opticians.
Massage is specifically excluded from the “Personal and Household Services” land use category. The Use Tables within each commercial zoning district list “Medical Practitioner Offices, including Holistic Health and Mental Health Practitioners” as summarized below.
Permit Requirements by District for Medical Practitioner Offices
Zoning District Permit Requirements
C-1, C-SA, C-DMU ZC (AUP required in Arts District)
C-N, C-NS, C-T, C-SO UP (PH)
C-E, MU-LI Prohibited
C-W ZC, AUP, or UP (PH), depending on size
MU-R AUP or UP (PH), depending on size
In each case, parking requirements for the use are higher than for general offices (1/300 s.f. for Medical Practitioner Offices, compared with 2/1,000 s.f. for general commercial). Proposed Amendment Staff recommends:
That a definition of “Chair Massage” be added to the Zoning Ordinance: o “Chair Massage” means massage given in a public, open setting to a
person who is fully clothed and sitting upright on a professional bodywork seat, a stool, or office seat, wheelchair, or other chair-like device.
That it be specifically listed in the Use Tables as a “Use Incidental to a Permitted Use” with a Zoning Certificate:
Add to: Table 23E.xx.030
Uses Incidental to a Permitted Use
Classification Special Requirements
Chair Massage when incidental to a retail use
ZC No additional parking required
That it be allowed in each of the above districts, except MU-LI, which does not allow food-product stores.
Alternatives Considered 1. Administratively allowing Chair Massage as an Accessory or Ancillary Use for food-
product stores: Not recommended because a ZC provides easy processing and a record of the proposed use.
2. Requiring an AUP for Chair Massage: Not recommended because the definition and Chapter 9.32 provide adequate standards and regulations.
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3. The number of Chair Massage seats could be limited, and/or the type of retail businesses where Chair Massage can be located could be limited. This type of additional regulation could be added if recommended by the Commission.
Staff also considered expanding the project to include review of the process for allowing Massage Establishments in each zoning district; however, this isn’t on the Department’s work program and our goal was simply to respond to the referral.
Attachments:
1. Council Referral, March 8, 2011 2. Chapter 9.32, Massage Therapy
To: Honorable Mayor and Members of the City Council
From: Councilmember Jesse Arreguín
Subject: Amendment to Berkeley Municipal Code Section 9.32.020 to Permit Chair Massages as an Incidental Service
RECOMMENDATION: Adopt first reading of an Ordinance amending Berkeley Municipal Code (B.M.C.) Section 9.32.020 to permit chair massages as an incidental service.
BACKGROUND: Since the recent adoption of changes to B.M.C. Section 9.32 “Massage Therapy”, several businesses that provide chair massages that are not provided in a “massage establishment” as defined in the Berkeley Municipal Code, but are provided at retail stores, have been told by the City that they can no longer operate due to the fact that chair massage businesses that are incidental to other businesses are not allowed by city law. Additionally, these businesses have also received fines from the city for operating a non-permitted business.
These businesses have operated for years without being permitted and the recent amendments to the “Massage Therapy” ordinance did not consider allowing these uses.
Given that these businesses have already been shut down, it is important that the City act expeditiously to adopt an amendment allowing these businesses to operate if they meet the licensing and other requirements in the Berkeley Municipal Code.
The City of Oakland adopted a similar ordinance in 2008 allowing for chair massage businesses to operate as an incidental use. A copy of the Oakland ordinance is also attached.
FINANCIAL IMPLICATIONS Unknown. However, additional revenue could be generated through permit and business license fees from chair massage businesses.
CONTACT PERSON Jesse Arreguin, Councilmember, District 4 981-7140 Attachments:
1. Ordinance 2. Copy of 2008 Oakland Ordinance
Item 9 - Attachment 1
Planning Commission
June 20, 2012
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ORDINANCE NO. -N.S.
AMENDING BERKELEY MUNICIPAL CODE SECTION 9.32.020 PERMITTING CHAIR MASSAGE BUSINESSES AS AN INCIDENTAL SERVICE
BE IT ORDAINED by the Council of the City of Berkeley as follows: Section 1. That Berkeley Municipal Code Section 9.32.020 is amended to read as follows: E. “Massage establishment” means any business or establishment at a fixed place of business, with the exception of “chair massage” businesses as defined in this chapter, which are allowed as an incidental service in a non-massage business, which offers message therapy in exchange for compensation. Any business or establishment which offers any combination of massage therapy and bath facilities, including, but not limited to, showers, baths, wet and dry heat rooms, pools and hot tubs shall be deemed a massage establishment under this chapter. J. “Chair massage” means massage given to a person who is fully clothed and sitting upright on a professional bodywork seat, a stool or office seat, wheelchair, or other chair-like device. K. “Incidental service” means that no more than twenty-five percent of the business’ revenue is derived from massage and no more than twenty-five percent of the floorspace is devoted to massage. L. “Non-massage business” means a business in which the practice of massage is not the principal activity of the business but is an incidental service and subordinate to the principal activity. Section 2. Copies of this Ordinance shall be posted for two days prior to adoption in the display case located near the walkway in front of Council Chambers, 2134 Martin Luther King Jr. Way. Within 15 days of adoption, copies of this Ordinance shall be filed at each branch of the Berkeley Public Library and the title shall be published in a newspaper of general circulation.
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Attachment 2
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Item 9 – Attachment 2 Planning Commission June 20, 2012
permits. 9.32.130 Inspection by officials. 9.32.140 Permit--Suspension or revocation authorized when--Appeals. 9.32.150 Violation--Penalty. 9.32.160 Severability.
*For zoning provisions, see Title 23.
9.32.010 Purpose. It is the purpose and intent of this Chapter to provide that all persons engaged in the practice of Massage Therapy in the City of Berkeley shall possess either a valid California Massage Therapy Council (CAMTC) certification or a valid Massage Therapy Permit and that all massage establishments that employ persons who possess a valid massage therapy permit also possess a valid Massage Establishment Permit. These procedures and regulations are declared necessary to preserve and protect the health, safety and general welfare of the residents of the City. (Ord. 7214-NS § 1, 2011: Ord. 7106-NS § 1 (part), 9/29/09)
9.32.020 Definitions. A. "Bona fide massage therapy school" means an institution, school, or training center providing a course of training in bodywork, healing arts, massage, or touch therapy and issuing a diploma or certificate upon completion of at least five hundred (500) hours of classroom instruction.
B. "City" means the City of Berkeley.
C. "Compensation" means the payment, loan, advance, donation, contribution, deposit, exchange or gift of money or anything of value.
D. "Massage," "Massage Therapy" and "Bodywork" are used in the Chapter interchangeably and mean any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the human body with the hands or other parts of the body or with the aid of any mechanical or electrical apparatus, or other appliances or devices. Massage includes, but is not limited to, shiatsu, acupressure or similar activities.
E. "Massage Establishment" means any business or establishment at a fixed place of business which offers Massage Therapy in exchange for compensation. Any business or establishment which offers any combination of Massage Therapy and bath facilities, including, but not limited to, showers, baths, wet and dry heat rooms, pools and hot tubs, shall be deemed a Massage Establishment under this Chapter.
F. "CAMTC Certificate" means a certificate issued to Massage Therapists and Massage Practitioners as those terms are used in Sections 4601 and 4604 of the California Business and Professions Code.
G. "Operator" means any person who supervises, manages, directs, organizes, controls or in any other way is responsible for or in charge of the overall operation, conduct or activities of a Massage Establishment.
H. "Owner" means any of the following persons: the sole proprietor of a Massage Establishment, any general partner of a partnership that owns and operates a Massage Establishment or any person with a five-percent (5%) or greater ownership interest in a corporation that owns and operates a Massage Establishment.
I. "Person" means any individual, proprietorship, partnership, firm, association, joint stock company, corporation or combination of individuals of whatever form or character. (Ord. 7214-NS § 2, 2011: Ord. 7106-NS § 1 (part), 9/29/09)
9.32.030 Massage therapy--CAMTC certificate or massage therapy permit required--Exemptions. It shall be unlawful for any individual to provide Massage Therapy in exchange for compensation within the City without first obtaining either a valid CAMTC certificate or a Massage Therapy Permit except for the following individuals:
A. Any individual licensed to practice the art of healing as defined under Division 2 of the California Business and Professions Code beginning at Section 500 while engaging in a practice within the scope of their license.
B. Any employee of a California state-licensed hospital, nursing home, sanitarium or other state-licensed physical or mental health facility while engaging in a practice within the scope of their employment.
C. Any employee of an Approved Massage School as that term is defined in Section 4600 of the California Business and Professions Code while engaging in a practice within the scope of their employment.
D. Any person licensed to practice barbering or cosmetology as defined at Division 3, Chapter 10 beginning at Section 7300 of the California Business and Professions Code while engaging in a practice within the scope of their license. (Ord. 7214-NS § 3, 2011: Ord. 7106-NS § 1 (part), 9/29/09)
9.32.040 Massage therapy permit--Application--Contents required. An applicant for a massage therapy permit shall file an application with the Revenue Collections Division of the Department of Finance upon a form to be provided by said department and pay a filing fee which shall be nonrefundable. The application shall specify the nature of the services to be provided and the name and address of the applicant. The application shall include a copy of a diploma or certificate issued to the applicant by a bona fide massage therapy school, as well as the address and telephone number of that bona fide massage therapy school. The applicant may provide additional documentation showing training and certification in bodywork, healing arts, massage, or touch therapy.
If any changes occur which result in changes to the information provided on an application required pursuant to this section, the holder of a permit must submit an updated application within fifteen (15) days from the date of such changes. (Ord. 7106-NS § 1 (part), 9/29/09)
9.32.050 Massage therapy permit--Criminal background check. The Berkeley Police Department shall investigate the criminal history of the applicant. A massage therapy permit will not be issued if the applicant has been convicted of any of the following offenses or convicted of an offense outside the State of California that would have constituted any of the following offenses if committed within the State of California:
A. An offense involving conduct which requires registration pursuant to Section 290 of the Penal Code;
B. An offense involving the use of force and violence upon the person of another that amounts to a felony;
C. An offense involving sexual misconduct with children;
D. An offense charged under Chapter 7.5 of Title 9 of the Penal Code;
E. An offense charged under Section 266i, 647(a), 647(b), 315, 316 or 318 of the Penal Code. (Ord. 7106-NS § 1 (part), 9/29/09)
9.32.060 Permit for massage establishments--Exemptions. It is unlawful for any person to engage in or conduct a Massage Establishment in the City without first having obtained a permit to conduct such pursuant to this Chapter. Every applicant for a Massage Establishment permit shall file an application with the Revenue Collections division of the Department of Finance upon a form to be provided by said Department and pay a filing fee which shall be non-refundable. The following entities are exempt from filing for permits for a Massage Establishment:
A. Any California state-licensed hospitals, nursing homes, sanitariums or other state-licensed physical or mental health facilities.
B. Any Approved Massage Schools as that term is defined in Section 4600 of the California Business and Professions Code.
C. Any Massage Establishment which employs or retains only individuals who possess valid CAMTC certifications to provide Massage Therapy in exchange for compensation at that Establishment as long as all of the following requirements are met:
1. Such Establishment provides copies or other evidence of the certificates held by all individuals employed or retained by it to the City in accordance with paragraph (2)(B) of subsection (b) of Section 4612 of the California Business and Professions Code; and
2. Any Owner of such Establishment who does not possess a valid CAMTC certificate completes a criminal background check pursuant to Section 9.32.080 in accordance with subsection (e) of Section 4612 of the California Business and Professions Code; and
3. Any Owner or Operator notifies the City in writing of any intention to rename, change management or convey such Establishment to another person in accordance with paragraph (2) of subsection (d) of Section 4612 of the California Business and Professions Code; and
4. Such Establishment is in compliance with the requirements of this Chapter and the provisions of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code in accordance with subsection (c) of Section 4612 of the California Business and Professions Code. (Ord. 7214-NS § 4, 2011: Ord. 7106-NS § 1 (part), 9/29/09)
9.32.070 Massage establishment permit--Application--Contents required. Where a massage establishment employs or retains individuals who do not possess valid CAMTC certifications to provide massage therapy in exchange for compensation, such application shall specify the nature of the massage therapy service available, the hours of operation, the name and address of the establishment, the name and address of the owner(s) and operator(s) of the establishment and the name and mailing address of the applicant. The application shall also include a copy of either a valid CAMTC certificate or a massage therapy permit held by each person who is employed or retained by the establishment to provide massage therapy in exchange for compensation within thirty (30) calendar days of the commencement of such person’s employment.
If an owner, operator, or holder of a permit issued under this section makes any changes to the massage establishment which result in changes to the information provided on an application required pursuant to this section, said person must submit an updated application within fifteen (15) days from the date of such changes. (Ord. 7214-NS § 5, 2011; Ord. 7106-NS § 1 (part), 9/29/09. Formerly 9.32.080)
9.32.080 Massage establishment permit--Criminal background check. Where an applicant(s) submits an application for a Massage Establishment Permit pursuant to Section 9.32.070, the Berkeley Police Department shall investigate the criminal history of each of the Owner(s) and Operator(s) of the Establishment except when the Owner(s) and Operator(s) possess either a valid CAMTC certificate or Massage Therapy Permit. A Massage Establishment Permit will not be issued pursuant to Section 9.32.070 if any of the Owner(s) and Operator(s) have been convicted of any of the following offenses or convicted of an offense outside the State of California that would have constituted any of the following offenses if committed within the State of California:
A. An offense involving conduct which requires registration pursuant to Section 290 of the Penal Code;
B. An offense involving the use of force and violence upon the person of another that amounts to a felony;
C. An offense involving sexual misconduct with children;
D. An offense charged under Chapter 7.5 of Title 9 of the Penal Code;
E. An offense charged under Section 266i, 647(a), 647(b), 315, 316 or 318 of the Penal Code. (Ord. 7214-NS § 6, 2011: Ord. 7106-NS § 1 (part), 9/29/09. Formerly 9.32.090)
9.32.090 Permit application--Grant or denial. The Department of Finance will begin review of an application upon completion. It will conclude review of the application and issue a decision within thirty (30) days of submission of a completed application. A permit application may be denied when the applicant has provided false information. (Ord. 7214-NS § 7, 2011: Ord. 7106-NS § 1 (part), 9/29/09. Formerly 9.32.100)
9.32.100 Permit--Period of validity and nontransferability. A permit issued under provisions of this chapter shall be nontransferable and shall be valid only for two years from the date of issuance. (Ord. 7214-NS § 8, 2011; Ord. 7106-NS § 1 (part), 9/29/09. Formerly 9.32.110)
9.32.110 Permit--Renewal procedure--Deadline. Sixty (60) days prior to the date of expiration of any permit issued pursuant to this Chapter, the permittee shall apply to renew the permit. The permittee shall apply for renewal of a permit in the manner provided in Sections 9.32.040, 9.32.050, 9.32.070 and 9.32.080 as applicable. (Ord. 7214-NS § 9, 2011: Ord. 7106-NS § 1 (part), 9/29/09. Formerly 9.32.120)
9.32.120 Evidence of CAMTC certifications--Massage therapy permits--Massage establishment permits. A Massage Establishment permitted pursuant to this Chapter shall maintain on its premises evidence demonstrating that all persons providing Massage Therapy in exchange for compensation at such Establishment have obtained either a valid CAMTC certificate or a Massage Therapy Permit and that the Establishment has obtained a Massage Establishment Permit for review by City authorities. (Ord. 7214-NS § 10, 2011: Ord. 7106-NS § 1 (part), 9/29/09. Formerly 9.32.130)
9.32.130 Inspection by officials. In accordance with paragraph (1) of subsection (d) of Section 4612 of the California Business and Professions Code, a Massage Establishment shall be subject to reasonable inspections during regular business hours for the purpose of ensuring compliance with this Chapter, Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code and applicable building, fire, electrical, plumbing or health regulations. A warrant shall be obtained whenever required by law. (Ord. 7214-NS § 11, 2011: Ord. 7106-NS § 1 (part), 9/29/09. Formerly 9.32.140)
9.32.140 Permit--Suspension or revocation authorized when--Appeals. In accordance with subdivision (c) of Section 4612 of the California Business and Professions Code, any massage therapy or establishment permit may be revoked or suspended by the Department of Finance, after a hearing, where any of the provisions of this chapter, or the provisions of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code, are
violated. During the time that the permit is suspended, it shall be unlawful for the permittee to exercise any of the rights granted under this chapter.
Any decision to suspend or revoke a permit may be appealed to the City Manager. The decision of the City Manager is final. The City Manager may promulgate written rules and regulations for the conduct of hearings by the Department of Finance and appeals to the City Manager. (Ord. 7214-NS § 12 (part), 2011: Ord. 7106-NS § 1 (part), 9/29/09. Formerly 9.32.150)
9.32.150 Violation--Penalty. A. Every person who violates any provision of this chapter shall be guilty of a misdemeanor and, upon conviction, such person shall be punishable as set forth in Chapter 1.20.
B. Every person who violates any provision of this chapter may be subject to administrative citations pursuant to Chapter 1.28.
C. Each violation of this chapter and each day of violation of this chapter shall be considered a separate and distinct violation thereof and the imposition of a penalty shall be as set forth in subsection A of this section for each and every separate violation and each and every day of violation. (Ord. 7214-NS § 12 (part), 2011: Ord. 7106-NS § 1 (part), 9/29/09. Formerly 9.32.160)
9.32.160 Severability. If any section, subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter. In addition, the City Council hereby declares that it would have passed the ordinance codified in this chapter, and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of this chapter would be subsequently declared invalid or unconstitutional. (Ord. 7214-NS § 12 (part), 2011: Ord. 7106-NS § 1 (part), 9/29/09. Formerly 9.32.170)
