South Pasadena Municipal Code Art. III Deemed Approved Massage Establishments

(a) The general purposes of this Article are to protect and promote the public health, safety, comfort, convenience, prosperity, and general welfare by requiring that massage establishments that would otherwise be considered legal nonconforming activities under Article II (commencing with SPMC 17.13) comply with the deemed approved performance standards at SPMC 17.42 and to achieve the following objectives:

(1) To protect the health, safety, and general welfare of the public by preventing unlawful, unsanitary, and dangerous conditions or practices within the city of South Pasadena;

(2) To protect residential, commercial, industrial and civic areas and minimize the adverse impacts of nonconforming and incompatible uses;

(3) To provide opportunities for deemed approved massage establishments to operate in mutually beneficial relationship to each other and to other commercial and civic services;

(4) To regulate those businesses that provide massage services to the public in order to provide a standard of safety, lawfulness, and quality commonly expected of the industry;

(5) To provide that deemed approved massage establishments are not the source of undue public nuisances or visual blight in the community;

(6) To monitor that deemed approved massage establishments do not substantially change in mode or character of operation; and

(7) To assure that guests and clients of deemed approved massage establishments are provided safe, clean, and secure premises for service.

(b) Scope. This article shall apply, to the extent permissible under other laws, to all legal nonconforming massage establishments within the city.

(c) Duplicated Regulation. Whenever any provisions of this article and any other provision of law, whether set forth in this code, or in any other law, ordinance, or resolution of any kind, imposes overlapping or contradictory regulations, or contains restrictions covering any same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in this article.

(d) Relationship to the Zoning Regulations. The nonconforming use provisions of the zoning regulations including, but not limited to, SPMC 36.360.010 et seq., shall apply to this article. (Ord. No. 2292, § 2, 2016.)

As used in this article:

“Condition of correction” means a requirement which must be carried out by the establishment in order to retain its deemed approved status.

“Deemed approved status” means the status conferred upon a deemed approved massage establishment. Deemed approved status replaces legal nonconforming status.

“Hearing officer” means the city manager or his or her designee.

“Illegal activity” means any activity which has been finally determined to be in noncompliance with the deemed approved performance standards in SPMC 17.42. Such an activity shall lose its deemed approved status and shall no longer be considered a deemed approved massage establishment.

“Legal nonconforming massage establishment” means any massage establishment which would otherwise be considered a nonconforming use under Article II of Chapter 17 SPMC. Such an establishment or use shall be considered a deemed approved massage establishment, and shall no longer be considered a legal nonconforming use, except such activity shall be subject to those zoning regulations relating to nonconforming uses as specified in SPMC 36.360.010 et seq., as of the effective date of the ordinance codified in this article.

“Performance standards” means regulations prescribed in the deemed approved performance standards set forth in SPMC 17.42. (Ord. No. 2292, § 2, 2016.)

(a) “Deemed approved massage establishment” means any massage establishment (as defined in SPMC 17.14) that is legal nonconforming and in existence immediately following the effective date of any amendment to Article II of Chapter 17 SPMC regulating massage establishments and the practice of massage. Said business shall be considered a deemed approved massage establishment as long as it complies with the deemed approved massage establishment performance standards as set forth in this section. Said business shall no longer be considered a legal nonconforming activity or use.

(b) A massage establishment shall retain its deemed approved status only if it conforms with the provisions of Article II of Chapter 17 SPMC, commencing with SPMC 17.20 and any other applicable provisions of this code. (Ord. No. 2292, § 2, 2016.)

(a) Automatic Deemed Approved Status. All massage establishments that would otherwise be considered legal nonconforming uses under this code and the provisions of Article II of Chapter 17 SPMC shall automatically become deemed approved massage establishments as of the effective date of this article and shall no longer be considered legal nonconforming uses. Each such deemed approved massage establishment shall retain its deemed approved status as long as it complies with the deemed approved performance standards in SPMC 17.42.

(b) Notification of Owners of Deemed Approved Massage Establishment. The city shall notify the owner of each deemed approved massage establishment, and also the property owner if not the same, of the establishment’s deemed approved status. Such notice shall be sent via certified return receipt mail; shall include a copy of the performance standards of SPMC 17.42 and Article II of this chapter; notification that the establishment is required to comply with all these same performance standards; and that the establishment is required to comply with all other aspects of this article. Should the notice be returned, then the notice shall be sent via regular U.S. mail. (Ord. No. 2292, § 2, 2016.)

(a) As a result of an inspection or upon receiving a complaint from the public, police department, or any other interested party that a deemed approved massage establishment is in violation of the performance standards at SPMC 17.42, and once it is determined by the city that violations appear to be occurring, then the deemed approved status of the deemed approved massage establishment in question shall be reviewed by the hearing officer at a public hearing. Notification of the public hearing shall be in accordance with subsection (d) of this section.

(1) At the public hearing the hearing officer shall receive testimony and other evidence on whether the operating methods of the deemed approved massage establishment are in violation of the performance standards at SPMC 17.42, are causing undue negative impacts in the surrounding area, and whether the property is being maintained in a manner in violation of any provision of this code.

(2) While the hearing is open, any interested party may present to the hearing officer for his or her consideration any relevant testimony or evidence; failure to do so will preclude the party from raising such issues during any appeal hearing and in court.

(3) Within 15 days following the public hearing, the hearing officer shall issue a written determination whether the deemed approved massage establishment conforms to the deemed approved performance standards set forth in SPMC 17.42 and to any other applicable criteria, and may:

(A) Continue the deemed approved status for the establishment in question;

(B) Continue the deemed approved status for the establishment, subject to reasonable conditions of correction as are in the judgment of the hearing officer necessary to ensure conformity with said criteria and such conditions shall be based on the evidence before the officer; or

(C) Revoke the deemed approved status if the officer finds that the violations pose a threat to the health and safety of the public.

(4) The decision of the hearing officer shall be based upon information compiled by staff and testimony from the business owner and all other interested parties. The determination of the hearing officer shall become final 15 calendar days after the date of the written decision unless appealed to the city council in accordance with subsection (c) of this section. Any party seeking to appeal the determination will be limited to issues or evidence presented to the hearing officer prior to the close of the hearing officer’s public hearing on the matter.

(b) Procedure for Consideration of Violations of Conditions of Corrections. In the event of a failure to comply with any prescribed condition of correction, the hearing officer may hold a public hearing. Notification of the public hearing shall be in accordance with subsection (d) of this section. The same procedures shall apply as described under subsection (a) of this section.

(c) Appeal to City Council. Within 15 calendar days after imposition of conditions of approval pursuant to the hearing officer’s written determination on a deemed approved massage establishment or the revocation of deemed approved status, an appeal may be taken to the city council by the deemed approved massage establishment owner or any other interested party.

(1) In the event the last date of appeal falls on a weekend or a holiday when city offices are closed, the next date such offices are open for business shall be the last date of appeal.

(2) Such appeal shall be made on a form prescribed by the city. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the officer or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to the hearing officer prior to the close of the public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues during the appeal or in court.

(3) Upon receipt of the appeal and the appeal fee in accordance with subsection (e) of this section a date shall be set for consideration thereof. Not less than 17 days prior thereto, written notice shall be given to: the owner of the deemed approved massage establishment; the property owner; the appellant in those cases where the appellant is not the owner; the adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as appropriate, of the date and place of the hearing on the appeal.

(4) During the hearing on the appeal, the appellant will be limited to issues and evidence presented to the hearing officer prior to the close of the public hearing on the item and raised in the appeal itself. The appellant shall not be permitted to present any other evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the city council shall determine whether the deemed approved massage establishment conforms to the applicable deemed approved performance standards and conditions of

correction (if applicable), and may continue or revoke a deemed approved status; or require such changes in the existing use or impose such reasonable conditions of approval as are, in its judgment, necessary to ensure conformity to said performance standards.

(5) The decision of the city council on the appeal shall be final.

(d) Notification of Public Hearing before Hearing Officer. The hearing officer shall notify the owner of each deemed approved activity, and also the property owner if not the same, of the time and place of the public hearing.

(1) Such notice shall be sent via certified return receipt mail, and shall include notification that the deemed approved status of the deemed approved massage establishment will be considered by the hearing officer.

(2) The public hearing shall also be noticed by posting notice on the premises of the subject property. The notice shall be placed in the window of the establishment (if a window facing the street is not present, then the notice will be required to be posted onto the exterior of the building). All notices shall advertise the time, date, purpose and location of the public hearing for each particular site. All notices shall be given not less than 10 days prior to the date set for the hearing.

(3) Notice shall also be given by mail or delivery to all persons shown on the last available equalized assessment roll as owning real property in the city within 300 feet of the subject property; provided, however, that failure to send notice to any such owner where his or her address is not shown in said records shall not invalidate the affected proceedings.

(4) Such notices shall be given not less than 10 days prior to the date set for the hearing, if such is to be held. Notice by mail is deemed given on the date the notice is placed into the U.S. mail system. Fees for notification shall be in accordance with subsection (e) of this section and paid for by the deemed approved massage establishment in question.

(e) Fee Schedule. Fees, and regulations pertaining to fees, including the appeal, and reinspection of deemed approved massage establishments shall be in accordance with the city master fee schedule.

(f) A massage establishment which has had its deemed approved status revoked must immediately cease and desist all massage services and related business operations. No massage establishment which has had its deemed approved status revoked may apply for a new operator’s permit pursuant to SPMC 17.17 through 17.19 for 24 months from the date of revocation. (Ord. No. 2292, § 2, 2016.)

(a) Infractions. Any person who operates a massage establishment in a manner which violates, causes or permits another person to violate any provision of this article is guilty of an infraction unless otherwise provided.

(b) Separate Offenses for Each Day. Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this article is committed, continued, permitted, or caused by such violator and shall be punished accordingly.

(c) Any Violation a Public Nuisance. In addition to the penalties provided in this section, any use or condition caused or permitted to exist in violation of any of the provisions of this article, shall be and is declared to be a public nuisance and may be subject to administrative remedies pursuant to Chapter 1A SPMC. In addition, a nuisance may be abated as such by the city after appropriate notice and procedures pursuant to Chapter 24 SPMC.

(d) Injunction as Additional Remedy. Any violation of any provision of this article shall be and is declared to be contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief.

(e) Penalties. Any person convicted of an infraction under the provisions of this section shall be punishable by a fine to the maximum permitted under state law. Any violation beyond the second conviction within a one-year period may be charged by the city attorney or district attorney as a misdemeanor, and the penalty for conviction shall be punishable by a fine or imprisonment to the maximum permitted under state law.

(f) Liability for Expenses. In addition to the punishment provided by law, a violator is liable for such costs, expenses, and disbursements paid or incurred by the city or any of its contractors in correction and abatement of the violation. Reinspection fees to ascertain compliance with previously noticed or cited violations may be charged against the owner of the deemed approved massage establishment, if adopted in the city’s fee schedule resolution. The inspection official shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property. (Ord. No. 2292, § 2, 2016.)

The city manager shall designate the appropriate personnel to enforce the provisions of this article. (Ord. No. 2292, § 2, 2016.)