Engineering and Traffic Survey for Speed Limits 40
City of National City
STREET LOCATION
POSTED
SPEED LIMIT
(MPH)
85TH
PERCENTILE
SPEED (MPH)
MEDIAN
SPEED
(MPH)
10 MPH
PACE
RANGE
PERCENT
OF
VEHICLES
IN PACE
RECOMMENDED
SPEED LIMIT
(MPH)
RECOMMENDED
ACTION JUSTIFICATIONS/ COMMENTS
30th Street
95 Hoover
Avenue
National
City
Boulevard
30 36 32 28-37 83% 30 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA -MUTCD Section 2B.13, Standard 12ag). 96 National City
Boulevard
Highland
Avenue 30 37 32 28-37 74% 30 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th- percentile speed (CVC 22358.6(b); CA- MUTCD Section 2B.13, Standard 12a, Option 1) - Safety of bicyclists and pedestrians, vulnerable pedestrian groups - high school (CVC 627(c)(2); CA-MUTCD Section 2B.13, Option 29B), Accident rate higher than statewide average (CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E). 97 Highland
Avenue L Avenue 35 37 33 30-39 83% 35 No change Speed limit shall be established at the nearest 5 mph increment of the 85th -percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a) Sweetwater Road
98 2nd Avenue I-805/Euclid
Avenue 35 41 37 34-43 88% 35 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th- percentile speed (CVC 22358.6(b); CA- MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate).
99 I-805/Euclid
Avenue Valley Road 45 46 42 37-46 82% 45 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a) 100 Valley Road Plaza Bonita
Road 45 46 41 37-46 69% 45 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a) 101 Plaza Bonita
Road
Plaza Bonita
Center Way 45 48 43 39-48 79% 45 No change
When the nearest 5 mph increment of the 85th-percentile speed would require a rounding up, the speed limit may be rounded down to the nearest 5 mph increment below the 85th percentile speed, if no further reduction is used (CVC 22358.6(c); CA-MUTCD Section 2B.13, Standard 12a, Option 2). 32nd Street
102 Tidelands
Avenue Marina Way 25 33 26 23-32 64% 25 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA -MUTCD Section 2B.13, Standard 12ag).
Engineering and Traffic Survey for Speed Limits 41
City of National City
STREET LOCATION
POSTED
SPEED LIMIT
(MPH)
85TH
PERCENTILE
SPEED (MPH)
MEDIAN
SPEED
(MPH)
10 MPH
PACE
RANGE
PERCENT
OF
VEHICLES
IN PACE
RECOMMENDED
SPEED LIMIT
(MPH)
RECOMMENDED
ACTION JUSTIFICATIONS/ COMMENTS
Valley Road
103 Sweetwater
Road Calle Abajo 45 46 41 37-46 82% 40 Reduce to 40 mph When the nearest 5 mph increment of the 85th-percentile speed would require a rounding down, the speed may be reduced by 5 mph from the nearest 5 mph increment of the 85th- percentile speed (CVC 22358.6(b); CA- MUTCD Section 2B.13, Standard 12a, Option 1) - CVC 627(b)(2); CA-MUTCD Section 2B.13, Option 16E (accident rate).
104 Plaza Bonita
Center Way
San Miguel
Court 40 45 39 34-43 61% 40 No change
Currently adopted speed limit or immediately prior adopted speed limit shall only be retained, by ordinance, if after completing an E&TS, local agency finds that the speed limit is still more than reasonable or safe, and that speed limit was established with an E&TS and if a registered engineer has evaluated the section of highway and determined that no additional general purpose lanes have been added to the roadway since completion of the traffic survey that established the prior speed limit (CVC 22358.8(a); CA -MUTCD Section 2B.13, Standard 12ag).
Manchester Street
105 Plaza
Boulevard Angelo Drive 25 26 22 18-27 85% 25 No change Speed limit shall be established at the nearest 5 mph increment of the 85th-percentile speed of free-flowing traffic. (CVC 22358.6(a); CA-MUTCD Section 2B.13, Standard 12a)
ORDINANCE NO. 2023 -
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY ,
CALIFORNIA, ESTABLISHING SPEED LIMITS ON VARIOUS STREETS BASED ON
ENGINERING AND TRAFFIC SURVEYS AND AUTHORIZING THE DIRECTOR OF
PUBLIC WORKS TO POST SPEED LIMIT SIGNS CONSISTENT WITH THE RECOMMENDATIONS OF THE ENGINEERING AND TRAFFIC SURVEYS.
WHEREAS, section 22357 of the State of California Vehicle Code (CVC) permits local authorities to establish speed limits greater than the prima facie speed limit of 25 miles per hour (mph) when, on the basis of an engineering and traffic survey (E&TS), the local authority determines that a speed greater than 25 mph would facilitate the orderly movement of vehicular traffic and would be reasonable and safe; and
WHEREAS, State Assembly Bills (AB) 43 and 1938, which went into effect on January 1, 2022 and January 1, 2023, respectively, provide local agencies greater flexibility in setting and reducing speed limits; and
WHEREAS, section 627 of the CVC and Section 2B.13 of the California Department of Transportation Manual on Uniform Traffic Control Devices (CA -MUTCD) outline the criteria to be considered as part of conducting an E&TS , including that an E&TS be completed and certified by a registered professional Civil or Traffic Engineer at least once every 5, 7 or 14 years, in compliance with CVC Section 40802, to re-evaluate non-statuary speed limits on local roadways and allow for enforcement using radar, laser or other electronic devices; and
WHEREAS, an E&TS for 10 5 individual roadway segments was completed in accordance with the procedures established by Section 2B.13 of the CA -MUTCD and consistent with all applicable provisions of the CVC, and formal presentations were made to the Traffic Safety C ommittee on April 12, 2023 (preliminary findings) and August 16, 2023 (final recommendations) , where the Traffic Safety Committee ultimately voted unanimously in support of the recommendations of the E&TS at their meeting on August 16, 2023; and
WHEREAS, based on the findings and recommendations of the E&TS, 79 speed limits will remain the same, 2 6 will decrease, and zero of the existing speed limits will increase; and
WHEREAS, staff recommends the City Council authorize establishing speed limits on various streets based on the E&TS and authorize the Director of Public Works to post speed limit signs consistent with the recommendations of the E&TS.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, HEREBY ORDAINS AS FOLLOWS:
Section 1: That, pursuant to authority under the California Vehicle Code including, but not limited to, sections 22357 and 40802, and on the basis of engineering and traffic surveys conducted and certified in accordance with applicable State law and regulations, the City Council hereby establishes the following recommended speed limits as reasonable and safe to facilitate the orderly movement of vehicular traffic on the portions of roadways within the City of National City , summarized in subsections “A” through “E” below, and authorizes the Director of Public Works to post speed limit signs consistent with the recommendations of the Engineering and Traffic Surveys:
A. Twenty-five miles per hour is declared and established as the prima facie speed limit on the following streets:
1. 8th Street from National City Boulevard to Highland Avenue
2. 16th Street from Wilson Avenue to National City Boulevard
3. 18th Street from Wilson Avenue to National City Boulevard
4. 18th Street from National City Boulevard to Highland Avenue
5. 18th Street from Euclid Avenue to Rachael Avenue
6. 22nd Street from Wilson Avenue to National City Boulevard
7. 32nd Street from Tidelands Avenue to Marina Way
8. “D” Avenue from Division Street to 8th Street
9. “D” Avenue from 8th Street to 12th Street
10. “D” Avenue from 12th Street to 18th Street
11. Division Street from “D” Avenue to Highland Avenue
12. Grove Street from Prospect Street to Sweetwater Road
13. Highland Avenue from 2nd Street to 8th Street
14. Hoover Avenue from 22nd Street to Mile of Cars Way
15. “L” Avenue from 8th Street to Plaza Boulevard
16. “L” Avenue from 24th Street to 30th Street
17. Manchester Street from Plaza Boulevard to Angelo Drive
18. Marina Way from Bay Marina Drive to 32nd Street
19. McKinley Avenue from 14th Street to 19th Street
20. Palm Avenue from 16th Street to 18th Street
21. Plaza Boulevard from Coolidge Avenue to National City Boulevard
22. Roosevelt Avenue from 8th Street to Civic Center Drive
23. Roosevelt Avenue from Civic Center Drive to 16th Street
24. West Avenue from 16th Street to 18th Street
25. Wilson Avenue from 18th Street to 24th Street
B. Thirty miles per hour is declared and established as the prima facie speed limit on the following streets:
1. 4th Street from National City Boulevard to “D” Avenue
2. 4th Street from “D” Avenue to Highland Avenue
3. 4th Street from Highland Avenue to Palm Avenue
4. 4th Street from Palm Avenue to Euclid Avenue
5. 4th Street from Euclid Avenue to Harbison Avenue
6. 8th Street from Harbor Drive to National City Boulevard
7. 8th Street from Highland Avenue to Palm Avenue
8. 16th Street from National City Boulevard to Highland Avenue
9. 16th Street from Highland Avenue to Palm Avenue
10. 16th Street from Palm Avenue to Euclid Avenue
11. 16th Street from Euclid Avenue to Harbison Avenue
12. 18th Street from Highland Avenue to Palm Avenue
13. 18th Street from Palm Avenue to Euclid Avenue
14. 19th Street from Tidelands Avenue to Cleveland Avenue
15. 24th Street from “D” Avenue to Highland Avenue
16. 24th Street from Highland Avenue to “L” Avenue
17. 30th Street from Hoover Avenue to National City Boulevard
18. 30th Street from National City Boulevard to Highland Avenue
19. Bay Marina Drive from Tidelands Avenue to I-5
20. Civic Center Drive from Harbor Drive to National City Boulevard
21. Cleveland Avenue from Civic Center Drive to Bay Marina Drive
22. “D” Avenue from 18th Street to 24th Street
23. “D” Avenue from 24th Street to 30th Street
24. Division Street from National City Boulevard to “D” Avenue
25. Euclid Avenue from North City Limit to 4th Street
26. Harbison Avenue from Division Street to 4th Street
27. Harbison Avenue from 4th Street to 8th Street
28. Harbison Avenue from 8th Street to Plaza Boulevard
29. Harbison Avenue from Plaza Boulevard to 16th Street
30. Highland Avenue from National City Limit to Division Street
31. Highland Avenue from 8th Street to 18th Street
32. Highland Avenue from 24th Street to 30th Street
33. Highland Avenue from 30th Street to South City Limit
34. Hoover Avenue from 30th Street to 33rd Street
35. “L” Avenue from 16th Street to 24th Street
36. Main Street from I-5 to National City Boulevard
37. McKinley Avenue from 19th Street to 23rd Street
38. Mile of Cars Way from I-5 to National City Boulevard
39. National City Boulevard from 8th Street to 18th Street
40. Newell Street from 18th Street to Prospect Street
41. Palm Avenue from Division Street to Plaza Boulevard
42. Palm Avenue from Plaza Boulevard to 16th Street
43. Plaza Boulevard from National City Boulevard to Highland Avenue
44. Plaza Boulevard from Highland Avenue to Palm Avenue
45. Roosevelt Avenue from Division Street to 8th Street
46. Wilson Avenue from Civic Center Drive to 18th Street
C. Thirty-five miles per hour is declared and established as the prima facie speed limit on the following streets:
1. 8th Street from Palm Avenue to Euclid Avenue
2. 8th Street from Euclid Avenue to Harbison Avenue
3. 8th Street from Harbison Avenue to Paradise Valley Road/Plaza Boulevard
4. 24th Street from National City Boulevard to “D” Avenue
5. 30th Street from Highland Avenue to “L” Avenue
6. Division Street from Highland Avenue to Palm Avenue
7. Division Street from Palm Avenue to Euclid Avenue
8. Division Street from Euclid Avenue to Harbison Avenue
9. Euclid Avenue from 4th Street to 8th Street
10. Euclid Avenue from 8th Street to 20th Street
11. Euclid Avenue from 20th Street to 24th Street
12. Highland Avenue from 18th Street to 24th Street
13. Hoover Avenue from Mile of Cars Way to 30th Street
14. National City Boulevard from Division Street to 8th Street
15. National City Boulevard from 18th Street to 30th Street
16. National City Boulevard from 30th Street to South City Limit
17. Palm Avenue from I-805 to Division Street
18. Plaza Bonita Road from Sweetwater Road to Bonita Mesa Road
19. Plaza Boulevard from Palm Avenue to Euclid Avenue
20. Plaza Boulevard from Euclid Avenue to Harbison Avenue
21. Sweetwater Road from 2nd Avenue to I-805/Euclid Avenue
22. Tidelands Avenue from Civic Center Drive to 19th Street
23. Tidelands Avenue from 19th Street to Bay Marina Drive
24. Tidelands Avenue from Bay Marina Drive to 32nd Street
D. Forty miles per hour is declared and established as the prima facie speed limit on the following streets:
1. Harbor Drive from 8th Street to Civic Center Drive
2. Paradise Valley Road from 8th Street to Plaza Entrada
3. Plaza Bonita Center Way from Valley Road to Sweetwater Road
4. Plaza Boulevard from Harbison Avenue to 8th Street
5. Valley Road from Sweetwater Road to Calle Abajo
6. Valley Road from Plaza Bonita Center Way to San Miguel Court
E. Forty-five miles per hour is declared and established as the prima facie speed limit on the following streets:
1. Harbor Drive from North City Limit to 8th Street
2. Sweetwater Road from I-805/Euclid Avenue to Valley Road
3. Sweetwater Road from Valley Road to Plaza Bonita Road
4. Sweetwater Road from Plaza Bonita Road to Plaza Bonita Center Way
Section 2: This Ordinance shall take effect and be in force thirty (30) days from the date of its passage, and before the expiration of fifteen (15) days after its passage, it or a summary of it, shall be published once, with the names of the members of the City Council voting for and against the same in the Star News, a newspaper of general circulation published in the County of San Diego, California.
Section 3: The City Clerk shall certify to the adoption of this Ordinance and shall public in accordance with the law.
INTRODUCED at a regular meeting of the City Council of the City of National City, California, held on this 21st day of November, 2023.
PASSED and ADOPTED this _____ of ________________, 2023.
Ron Morrison, Mayor
ATTEST:
Shelley Chapel, MMC, City Clerk
APPROVED AS TO FORM:
Barry J. Schultz, City Attorney
AGENDA REPORT
Department: Police Department
Prepared by: Joseph Camacho, Police Sergeant
Meeting Date: Tuesday, November 7, 2023
Approved by: Ben Martinez, Interim City Manager
SUBJECT:
Second Reading and Adoption of Ordinances Amending National City Municipal Code S ection
10.70 – Police Regulated Business Regulations and 10.79 – Massage Establishments.
RECOMMENDATION:
Second Reading and Adoption of the Ordinances Entitled:
“An Ordinance of the City Council of the City of National City, California, Amending Chapter 10.70 Police Regulated Business Regulations of the National City Municipal Code; and
An Ordinance of the City Council of the City of National, California, Amending Chapter 10.79 Massage Establishments Regulations of the National City Municipal Code.”
BOARD/COMMISSION/COMMITTEE PRIOR ACTION:
Not Applicable.
SUMMARY:
Below is a brief summary of the recommended changes to the National City Municipal Code:
Section 10.70 – Police Regulated Businesses Regulations o Minor updates and cleanup for clarity.
o Inclusion of additional criteria for permit denial – the applicant for a massage establishment permit cannot have had a permit denied, suspended, or revoked for cause by any governmental agency or a massage practitioner certification denied, suspended, or revoked by the CAMTC.
o The appeal procedures have been updated to be consistent with the City’s administrative appeal section.
Section 10.79 – Massage Establishments
o Updates to the definition section for additional clarity. o Updates to the massage establishment operating requirements:
It is unlawful for massage establishments to operate under any name that is not specified in the massage establishment permit issued. Inclusion of limitations on who can be present in massage therapy rooms and in the waiting area.
o Updates to massage establishment prohibited conduct:
Employment of a person lacking state certification as a receptionist without prior notification and approval by the City.
Operating after the sale or transfer of the massage establishment to a person not identified as the owner on the massage establishment permit application.
EXPLANATION:
The National City Police Department (NCPD) submitted the National City Municipal Code Sections regarding Police Regulated Business Regulations (NCMC Section 10.70) and Massage Establishments (NCMC Section 10.79) to the California Massage Therapy Council (CAMTC) for review to assist with the enforcement, regulation and removal of illicit massage parlors in National City.
CAMTC completed the review of the National City Municipal Code sections and returned the ir review to the National City Police Department with several recommended corrections, additions and modifications to the National City Municipal Code to aid the police department, code enforcement and the city attorney’s office with the enforcement, regulation and removal of illicit massage parlors in National City.
NCPD forwarded the recommended corrections to the City Attorney’s Office for review. The City Attorney’s Office assisted by making the recommended corrections, additions and modifications to the National City Municipal Code to submit for approval to the City Council of the City of National City.
At their regul ar meeting on November 7, 2023, the City Council held a Public hearing and introduced the Ordinances.
FINANCIAL STATEMENT:
Not Applicable.
RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:
Public Safety
ENVIRONMENTAL REVIEW:
This is not a project under CEQA and is therefore not subject to environmental review.CCR15378; PRC 21065.
PUBLIC NOTIFICATION:
Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.
ORDINANCE:
First Reading
EXHIBITS:
Exhibit A – Redline Section 10.70 Police Regulated Business Regulations Exhibit B – Redline Section 10.79 Massage
Exhibit C – Ordinance – Section 10.70 Police Regulated Business Regulations Exhibit D – Ordinance – Section 10.79 Massage
Chapter 10.70 POLICE REGULATED BUSINESS REGULATIONS
National City, California, Code of Ordinances Created: 2023-03-17 09:29:45 [EST] (Supp. No. 60)
Chapter 10.70 POLICE REGULATED BUSINESS REGULATIONS
10.70.010 Purpose and intent—Permit required.
A. It is the purpose and intent of the city council to establish procedures for permit issuance and regulation of certain businesses and activities as police regulated for the protection of the public health, safety, and welfare. Businesses identified in this Division X (Chapters 10.70 through 10.79) have a higher degree of potential for one or more types of illicit activity - prostitution, disorderly conduct, gambling, fraudulent practices, or the concealment or facilitation of transfers of stolen property. Therefore, regulation of the operations of these establishments is appropriate to protect legitimate business practice and the public health, safety and welfare.
B. A business, activity or a performer or technician which is identified in Chapters 10.71 through 10.79 is designated a "regulated business," "regulated activity," "regulated perfor mer" or "regulated technician," as the case may be, and the specific regulations applicable to their conduct are set out in Chapters 10.71 through 10.79. The procedures set out in this Chapter 10.70 shall uniformly govern the administration and appeals process regarding the issuance, denial, suspension, or revocation of any permit required to operate as a regulated business or activity or as a regulated performer or technician pursuant to Chapters 10.71 through 10.79.
C. The issuance of a permit pursuant to this chapter does not excuse a regulated business, activity, performer, or technician from complying with any other revenue or regulatory requirement of this code or state law. A separate permit shall be required for each type of activity regulated by Chapters 10.71 through 10.79, unless otherwise provided. The issuance of a certificate or permit under other provisions of this code does not excuse compliance with or create a defense to any violation of the requirements of this chapter or Chapters
10.71 through 10.79, as applicable, or any other provisions of law or ordinance, including conditional use permits required under Title 18.
D. It is unlawful for any person to operate a business or activity or perform or practice as a performer or technician regulated by this chapter and Chapters 10.71 through 10.79, as applicable, without a valid permit issued by the chief of police or designee, or to operate, perform or practice while the permit is suspended or revoked. Each day a violation of this section exists constitutes a separate misdemeanor. (Ord. 2220 § 1(part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.020 Definitions.
For purposes of Chapters 10.70 through 10.79, the following definitions shall apply:
A. "Person" means and includes a natural person, a partnership, joint venture or a corporation.
B. "Operator" means any person who supervises, manages, directs, organizes, controls, or in any other way is responsible for or in charge of the daily operation, conduct or activities of the regulated business or activity.
C. "Owner" means any person or entity having an ownership interest in the establis hment.
D. "Responsible person" means any person who is an owner, operator, or manager, and includes any employee or agent in apparent charge of the premises for which the application is made or required or a permit is issued.
Created: 2023-03-17 09:29:45 [EST]
(Supp. No. 60)
E. "Permit" means a permit issued by or under the authority of the chief of police or designee that authorizes activity regulated under Chapters 10.71 through 10.79.
F. "Permittee" means an owner to whom a permit issued by or under the authority of the chief of police or designee that authorizes activity regulated under Chapters 10.71 and 10.79.
G. "Applicant" means the natural person(s) who complete and sign an application pursuant to this chapter.
(Ord. 2220 § 1 (part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.030 Applications.
A. Any person required to obtain a permit pursuant to Chapters 10.71 through 10.79 shall file a written application with the chief of police or designee on a city-approved form, and pay the non-refundable fee set forth in the National City fee schedule, to recoup all investigative costs. The applicant shall provide proof of payment of any regulatory fees imposed by the state of California or county of San Diego contemporaneously with the filing. Written application forms prepared by the chief of police or desi gnee may require the applicant to be photographed, finger printed and to provide, in addition to the information listed below, such other information as is reasonably necessary to carry out the purposes of this chapter. The application form shall be approved as to form by the city attorney. For massage establishments, the application shall be completed and signed by the owner of the proposed massage establishment, if a sole proprietorship; one general partner, if the owner is a partnership; or two officers, if the owner is a corporation.
B. An applicant for a permit shall submit the following information:
1. The full name of the business, including the name under which the business will be conducted;
2. The address where the business is to be conducted;
3. The applicant's full, true name, and any other names used;
4. The applicant's date of birth;
5. The applicant's present residential address and telephone number;
6. The previous addresses of the applicant for the three years immediately prior to the date of the application and the dates of residence at each;
7. Applicant's height, weight, color of eyes and hair;
8. Three recent portrait photographs at least two inches by two inches taken within the preceding six months, which accurately depict the current appearance of the applicant;
9. The applicant's driver's license and/or identification card issued by a state or federal governmental agency, or other photographic identification bearing a bona-fide seal of a foreign government;
10. If the owner is a corporation, domestic stock, domestic non-profit, qualified foreign corporation, limited liability company, general partnership, or limited partnership, the application shall include the following:
a. A business entity status report issued by the California Secretary of State; b. Organizational documents for the business entity including but not limited to a copy of the fictitious name statement and/or articles of incorporation;
Created: 2023-03-17 09:29:45 [EST]
(Supp. No. 60)
c. Full name, date of birth, residential address, and business address f or each officer and director; d. The name, date of birth, and residence addresses of the responsible employee(s) to be principally in charge of the day-to-day operations of the establishment. e. The full name of the owner, including any DBAs.
11. The tax identification number for the business;
12. The name, address, email address, and telephone number of the real property owner where the business will be operated, and a copy of the lease or rental agreement, if applicable;
13. The business license and permit history of the applicant, including whether the applicant when previously operating in this or another city or state under a certificate, license or permit, has had that certificate, license or permit suspended or revoked, the reason therefore, and the business activity or occupation subsequent to the suspension or revocation;
14. For massage establishment businesses regulated under Chapter 10.79, a copy of the massage practitioner certificate issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code for each owner who has been issued a certificate, or a statement that such a certificate has not been issued or has been previously denied or revoked by the California Massage Therapy Council or cancelled with information regarding the reason thereforesuch revocation or cancelation;
15. For massage establishment businesses regulated under Chapter 10.79, a list of all persons who will administer massage, including but not limited to employees and independent contractors. Such list shall include the full true name and any other names used, date of birth, residence address and copy of their driver's license or any other photo identification card issued by a state or federal agency, and a copy of the valid massage practitioner certificate issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code;
16. For massage establishment businesses regulated under Chapter 10.79, all services mus t be described on the application for the permit;
17. Business, occupation, or employment history of the applicant for the three years immediately preceding the date of the application;
18. A list, broken down for each applicant, each responsible employe e(s) to be principally in charge of the day-to-day operations of the establishment, and all partners if a partnership, or all officers and directors if a corporation, of all criminal convictions, including pleas of nolo contender, within the preceding five years, including those dismissed or expunged pursuant to Penal Code section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction, as well as a full explanation of the circumstances;
19. A complete set of fingerprints taken for each owner if a sole proprietorship, or each natural person, including the owner and operator or person to be principally in charge of the day- to-day operations of the establishment; unless in the case of massage establishment businesses, they hold a valid massage practitioner certificate issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code;
20. A signed statement authorizing the city, through its officers, agents, and empl oyees, to conduct a background check of the applicant, owners(s), and natural persons to be principally in charge of the day-to-day operations to seek information and conduct an investigation into the truthfulness of the statements set forth in the application and to ensure continual compliance with all applicable provisions of the law;
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(Supp. No. 60)
21. A signed acknowledgment that the owner(s) shall be responsible for the conduct of all employees or independent contractors working on the premises of the business and a cknowledging that failure to comply with the provisions of this chapter or any local, state or federal law and, for massage establishment businesses regulated under Chapter 10.79, failure to comply with California Business and Professions Code section 4600 et seq., may result in the suspension, revocation, or denial of the permit;
22. An acknowledgement that the applicant consents to periodic inspection of the regulated premises or activity, and that revocation of the permit may occur for any unjustified r efusal to allow the same;
23. An acknowledgement that the applicant has received a copy of Chapter 10.70 and any applicable chapter from Chapters 10.71 through 10.79 which regulate the business or activity of the applicant; and
24. A signed statement by the applicant certifying under penalty of perjury that all information in the application is true and correct, and acknowledging that failure to be truthful may result in denial of the application.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.040 Investigation.
The chief of police or designee, upon receipt of a written application for a permit and payment of the necessary fees shall promptly conduct an appropriate investigation to determine whether a permit should be issued in accordance with the provisions of this chapter. The chief of police or designee shall consider any relevant factual material relating to such application.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.050 Permit issuance or denial.
A. Issuance. The chief of police or designee may deny a permit application, based upon investigation and substantial evidence, if he or she finds one or more of any of the following:
1. That the operation or the premises of the activity, as proposed by the applicant, would violate any applicable laws, including but not limited to the city's fire, building, zoning and health regulations; or
2. That the applicant, any other person who will be directly engaged in the management and operation of the regulated business or activity, or an applicant who is to participate or perform services as a regulated technician or performer:
a. Has been convicted in any court of competent jurisdiction by a final judgment of any misdemeanor or felony, within the five years preceding the date of application, which rationally and reasonably relates to the conduct of the regulated activity; or b. Has allowed acts to occur in any business operations for the preceding five years which would violate those sections of the Penal Code listed in Section 10.70.050A.2.d, or any provision of this chapter or Chapter 10.79, irrespective of a conviction or acquittal; or
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(Supp. No. 60)
c. Has had a permit to operate a business that is or would be regulated pursuant to Chapters 10.70 through 10.79 suspended or revoked in any jurisdiction, within the preceding five years; or d. Within the five years immediately preceding the date of the filing of the application, has been convicted in a court of competent jurisdiction of any of the following offenses:
(1) An offense that requires registration under California Penal Code Section 290; or (2) An offense which is a violation of Sections 311 through 311.7, 313.1, 314, 315, 316, 318 or 647(a), 647(b), 647(d), 647(h), 653.22, 653.23 or 290 of the California Penal Code; or (3) An offense that is a reduction from any offense listed in Section 10.70.050A.2.d. (1) or (2) to some other offense under the Penal Code which would not require registration, pursuant to a plea of guilty negotiated prior to trial; or (4) Any misdemeanor or felony involving theft of property; or
3. That the applicant has made any false, misleading or fraudulent material statement of fact in the permit application, or any other related document required by the city in connection with the application; or
4. The applicant has not complied with the provisions of this chapter and Chapter 10.79; or
5. The applicant has had a massage establishment permit or other similar license or permit denied, suspended or revoked for cause by any governmental agency; or the applicant has any massage practitioner certification denied, suspended or revoked by the California Massage Therapy Council.
5. For establishments regulated by Chapter 10.79, the applicant proposes to locate the massage establishment in the same building as a massage establishment that has surrendered its permit or had its permit revoked within five years of the application date be cause a person engaged in any criminal conduct and/or violation of this chapter or Chapter 10.79 while on the premises of the former massage establishment; or
6. That the application is incomplete and the required information or documents were not submitted within twenty days of a request for the information or documents.
B. Timeliness and Conditional Issuance of Permit. Upon receipt of a properly completed application, the chief of police or designee shall either approve or deny the application within thirty days. Failure to take action on a permit application within thirty days shall not result in an automatic approval. If the chief of police or designee is awaiting investigation results from another governmental agency within those thirty days, the chief of police or designee shall issue a revocable conditional permit on the thirtieth day if a local records check fails to disclose any disqualifying information and the operation would otherwise be in compliance with all other applicable laws and regulations; except that a revocable conditional permit shall not be issued to an escort or massage technician or operator until it affirmatively appears that there is no disqualifying information, in order to avoid the potential for physical harm to a potential patron pending final action. Any revocable conditional permit shall be revoked if further investigation discloses the existence of a disqualifying factor under this Section 10.70.050.
C. An applicant whose application is denied based on subsection (A)(1) through (A)(5) of this section is not eligible to reapply for five years after notice of denial. An applicant whose application is denied for failure to comply with subsection (A)(6) is not eligible to reapply for one hundred eighty days after notice of deni al.
D. Permits must be exercised within one year of issuance or shall be deemed abandoned.
E. A permit is deemed abandoned if the establishment which has exercised its permit ceases operations covered by the permit for one hundred eighty days.
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F. A permit issued pursuant to this chapter shall not be operative until and unless all other required local, state, or federal licenses and permits have been obtained.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.060 Notice of decision.
Upon taking final action to issue or deny a permit application, or to suspend or revoke a permit under Section 10.70.080, the chief of police or designee shall give written notice of decision and the reasons to the applicant or permittee and to any other person requesting such notice. The notice of decision shall inform the applicant or permittee of the right to appeal under Section 10.70.070 and the time limits prescribed for such review. The chief of police or designee shall file a proof of service with the city clerk establishing the method and date of service. The issuance of the notice of decision shall begin the running of any period of limitation for city council or judicial review under Section 10.70.070 as follows:
A. Three calendar days after mailing a notice of decision to the address shown on the application by both first class mail, postage prepaid with return address clearly marked, and by certified mail, return receipt requested. Receipt of either by the addressee shall constitute service of notice. Actual receipt, however, shall not be a pre-requisite to the running of any period of limitation.
B. Immediately upon personal service or personal delivery of the notice of decision to the applicant or permittee.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.070 Appeal.
A. Any applicant or permittee aggrieved by the decision of the chief of police or designee regarding the issuance, conditional issuance, suspension, revocation or denial of a permit, shall have a right to request a hearing to appeal or contest the decisionto the city council pursuant to Section 1.42.020. .
B. An appeal to the city council must be perfected within fifteen calendar days after the service of a notice of decision by filing a letter of appeal with the city clerk stating the basis for the appeal. An applicant or permittee filing an appeal shall pay a nonrefundable fee to the finance department at the time the appeal is filed. The amount of such fee shall be as determined from time to time by resolution of the city council.
Upon receipt of the letter of appeal and proof of payment of the appeal fee, the city clerk shall set the matter for consideration by the city council at a regularly scheduled meeting as soon as reasonably practicable. The city clerk shall give the appealing party, and any other person requesting the same, at least five calendar days written notice of the time and place of such hearing.
C. At the time and place set for the hearing, the city council shall give the appealing party and any other interested party a reasonable opportunity to be heard and show cause why the determination of the chief of police or designee should not be upheld. After the chief of police or designee has presented the statement of facts upon which the determination was made, the burden to show that the action taken by the chief of police or designee was not based on substantial evidence, or was arbitrary, capricious, or unjustifi ed shall be upon the appealing party. The determination of the city council shall be final and conclusive and shall constitute the exhaustion of administrative remedy. The written determination of the city council shall be served upon the appealing party by the city clerk. Service shall conform to Section 10.70.060, and shall
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govern the commencement of any period of limitation for judicial review under Code of Civil Procedure Sections 1094.6 or 1094.8, whichever is applicable.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.080 Suspension and revocation.
A. The chief of police or designee may suspend or revoke any permit issued under the provisions of this chapter if he or she finds that:
1. The operation conducted by the permittee violates or has violated any applicable laws, including but not limited to the city's building, zoning and health regulations and Chapters 10.70 through 10.79, as applicable;
2. The applicant has failed to comply with a final court order or administrative action of an investigatory agency finding a violation of applicable federal, state, and local wage and hour laws, including, but no limited to, the Federal Fair Labor Standards Act, the California Labor Code, and any local minimum wage ordinance or prevailing wage requirements. For the purposes of this subsection, a final court order or administrative action is one as to which there is no pending appeal and the time for filing an appeal has passed.
32. The permittee, including a regulated performer or technician, or any other person who is directly engaged in the management and operation of the regulated business has, while the permit is in effect:
a. Allowed, committed or been convicted of an act that constitutes a violation of law which rationally and reasonably relates to the conduct of the regulated activity, b. Allowed or committed acts listed in Section 10.70.050(A)(2) to occur at a regulated business, irrespective of adjudication, conviction or acquittal, or c. Allowed a regulated performer or technician with a contagious or communicable disease to perform services under the auspices of the permittee; or
43. The applicant or permittee had knowingly made a false, misleading, or fraudulent material statement of fact in the permit application or any other document required in connection with the application.
B. The chief of police or designee shall serve the permittee with a written order stating the reasons for the suspension or revocation. The order may be for a limited period, not to exceed ninety days, or for permanent revocation. The order shall advise the permittee of appeal rights under Section 10.70.070. The chief of police or designee may issue the order without regard to the status of prosecution or finality of a conviction affecting a permittee, so long as the chief of police or designee has determined that suffici ent facts exist to justify the suspension. The order shall be effective immediately if personally served, or three calendar days after it has been deposited in the course of regular transmission in the United States Postal Service.
C. Except as provided under Section 10.70.080(D), immediately upon the order becoming effective, the permittee shall cease all operations under the permit and shall surrender the permit to the chief of police or designee.
D. In lieu of issuing an order of suspension or revocation, the chief of police or designee may impose conditions of probation for a specified duration not to exceed one year, during which period the permittee shall be subject to the order of suspension or revocation if the chief of police or designee determines those conditions have been violated. If the permittee accepts the order of probation, no appeal shall be allowed under Section 10.70.070. If, however, the permittee objects to the terms of probation, probation shall not be
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allowed, the order of suspension or revocation shall take effect, and appeal rights of the permittee under Section 10.70.070 shall then be applicable.
E. Only when an appeal is taken to the city council shall the order of suspension or revocation be stayed pending determination by the city council in the manner set forth in Section 10.70.070 of this chapter. The determination of the city council will be final and conclusive and constitute the exhaustion of administrative remedies. A written notice of decision of city council shall be served on the permittee in accordance with Section 10.70.060, and service shall begin the period of limitation for judicial review under Code of Civil Procedure Sections 1094.6 or 1094.8, whichever is applicable.
F. Police permits issued for an establishment to conduct business regulated under Chapters 10.71 through
10.79 are separate from and independent of any conditional use permit that is required or issued under the provisions of Title 18 of this code. Revocation or suspension of a police permit shall n ot operate to revoke or suspend a conditional use permit, notwithstanding that the same or similar terms and conditions may be applicable to both permits. Revocation or suspension of a police permit affects only the authority of the establishment to provide or allow a particular form of entertainment or activity at the premises for which the police permit is issued. The establishment may continue to conduct all other business for which it is licensed or allowed by law to conduct, unless separate action is taken to abate the establishment as a public nuisance or to revoke or suspend any other issued permit, including a conditional use permit. (Ord. 2220 § 1 (part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.090 Posting or exhibiting.
A. Permits issued to an operator shall be posted in plain view at the main entrance to the premises wher e the business or activity for which the permit is issued is conducted, and shall remain posted while the permit is in force.
B. The massage establishment shall comply with the requirements in California Civil Code Section 52.6 related to the posting of information for victims of human trafficking.
B. Permits Certificates issued to a regulated performer or technician shall be carried on their person, except that the permit of a regulated performer or technician may instead be posted on the regulated premi ses together with the permit issued for the regulated business or activity.
C. It is unlawful and a misdemeanor for any person subject to this chapter or Chapters 10.71 through 10.79 to fail to post or carry an issued permit or certificate as required by this section, or to fail to exhibit an issued permit or certificate upon demand of the chief of police or designee. (Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.100 Inspection of premises.
A. Issuance of a police permit is conditional upon the premises regulated under Chapters 10.71 through 10.79 being available for reasonable inspection by the police department, the fire department, the health officer, or city code compliance officials following approval of the application and during the operating hours of the regulated business or activity. Refusal to allow reasonable inspection during operating hours upon demand of an authorized official is grounds for the suspension or revocation of an issued permit, or the denial of an
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application for a permit. No application shall be granted if the premises do not meet applicable requirements of law or ordinance.
B. If necessary or appropriate, the official may obtain an inspection warrant after inspection has been denied.
Inspection pursuant to an issued inspection warrant does not mitigate or exonerate the suspension or revocation of the permit.
C. The county health officer is authorized to charge inspection fees established within the applicable fee schedule of the county of San Diego or the National City fee schedule. (Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.110 Duration.
Unless provided otherwise in Chapters 10.71 through 10.79, permits issued pursuant to this chapter remain valid until revoked, surrendered, or abandoned.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.120 Transfer of permit.
It is unlawful to transfer a permit from one person to another. It is unlawful to use a permit at another location except with the written approval of the chief of police or designee. An application for transfer of permit to another location shall be in writing and accompanied by a processing fee established in the National City fee schedule. The application for transfer shall contain the same information required for an initial application for a permit. Any transfer of a permit in violation of this Section 10.70.120 is void and shall confer no rights upon the transferee nor create any obligation upon the city to honor the transfer or to affo rd notification or appeal rights under Sections 10.70.060 or 10.70.070 to either the transferor or the transferee. (Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.130 Transition provisions.
A. A business lawfully conducting business in the city as of the effective date of this Chapter 10.70 that is to be regulated by Chapters 10.71 through 10.79 will be issued an appropriate police permit by the chief of police or designee without further payment of fees, provided the business or activity was otherwise in compliance with the regulatory and fiscal provisions of the municipal code in effect immediately prior to the enactment of this ordinance. Permits issued pursuant to this Section 10.70.130(A) shall thereafter be fully subject to the provisions of Chapter 10.70 and Chapters 10.71 through 10.79, as applicable, regarding administration, operation and licensing.
B. An existing business that does not meet the compliance standards for permit issuance under Section
10.70.130(A), and all new businesses commencing operations shall comply with Chapter 10.70 and Chapters
10.71 through 10.79, as applicable.
(Ord. 2204 § 5 (part), 2002)
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(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.140 Notice of changes.
A. Permittees of establishments governed by Chapter 10.79 shall only allow persons certified by the California Massage Therapy Council to provide massages at, or in association with the establishment, and shall immediately notify the chief of police or designee, in writing, of any change to the list provided pursuant to Section 10.70.030(B)(14).
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.150 Public nuisance.
Each regulated business or any business that is required to be regulated that operates in violation of Chapter
10.70 through 10.79, as may be applicable, is a public nuisance and may be enjoined civilly or administratively. In addition, and to the extent not expressly provided elsewhere in this code, it is unlawful and a misdemeanor to maintain a public nuisance.
(Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.160 Violations and regulatory enforcement.
Violation of any of the mandatory requirements or prohibitions contained in Chapters 10.70 through 10.79 are misdemeanors and constitute grounds for suspension or revocation of an issued permit, except that any requirement or prohibition designated as "regulatory only" will be treated only as grounds for suspension or revocation of an issued permit, and criminal prosecution may not occur for that violation. (Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.170 Severability.
The city council declares that the invalidity of any section or portion of Chapters 10.70 through 10.79 shall not affect the validity of any other remaining section or portion; that the council would have adopted each of those remaining portions, notwithstanding any later declared invalidity. Any provision determined invalid under the preceding sentence may either be severed or, if it can be judicially interpreted in a way that could harmonize it with the remaining provisions, then it may be so judicially interpreted and, as interpreted, be applied so as to give full purpose, meaning, and effect to the remaining provisions. (Ord. 2204 § 5 (part), 2002)
(Ord. No. 2019-2454, § 6, 1-22-2019)
Chapter 10.79 MASSAGE ESTABLISHMENTS
National City, California, Code of Ordinances Created: 2023-03-17 09:29:46 [EST] (Supp. No. 60)
Chapter 10.79 MASSAGE ESTABLISHMENTS1
10.79.010 Title and administration.
This chapter may be referred to as the National City massage establishment ordinance. Issuance and administration of permits is governed by Chapter 10.70. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.020 Purpose and intent.
It is the purpose and intent of this chapter to provide for the orderly regulation of a massage establishment business in the city in order to protect the public health, safety, and welfare by promulgating minimum standards for the establishment and operation of those businesses and to prevent the facilitation of prostitution. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.030 Definitions.
Whenever in this chapter the following words or phrases are used, they shall mean as follows:
A. "California Massage Therapy Council (CAMTC)" means the state organized non -profit organization created to regulate the massage industry set forth in Chapter 10.5 of Division 2 of the California Business and Professions Code, commencing with section 4600.
B. "CAMTC certificate" means a current and valid certificate issued by the California Massage Therapy Council to a massage technician.
C. “Compensation” means the payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value.
D. “Employee” means any person hired by a massage establishment who renders any service for the business/owner in exchange for any form of compensation from the business, including independent contractors.
CE. "Massage" means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances or with or without such supplementary aids as rubbing alcohol, liniments, antiseptic, oils, powder, creams, lotions, ointments, or other preparations commonly used in this practice.
DF. "Massage establishment" means an establishment where massage is administered.
EG. "Massage practitioner," "massage technician," or "technician" means any person, including a holistic health practitioner as defined in subsection OH, who gives or administers to another person of the same or opposite gender, for any form of consideration, a "massage" as defined in this chapter.
1Editor's note(s)—Ord. No. 2019-2454, § 6, adopted Jan. 22, 2019, amended Ch. 10.79 in its entirety to read as herein set out. Former Ch. 10.79, §§ 10.79.010—10.79.110, pertained to similar subject matter, and derived from Ord. 2204 § 8 (part), 2002; Ord. 2220 § 4, 2003).
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FH. "Massage establishment operator" or "operator" means any person, in cluding a holistic health practitioner as defined in subsection OH, who operates an establishment to give or administer to another person of the same or opposite gender, for any form of consideration, a "massage" as defined in this chapter. This includes any person who supervises, manages, directs, organizes, controls, or in any other way is responsible for or in charge of the daily operation, conduct, or activities of a massage establishment.
GI. "Massage practitioner certification" means a certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code.
J. “Patron” means any individual that provides financial support to athe massage establishment and receives ing or waitsing to receive massage therapy services.
HK. "Permit" under this chapter means an annual permit to operate a massage establishment as required by this code.
L. “Sexually suggestive advertising” means advertising matter that depicts any portion of the human body or includes language in the text of such advertising that would reasonably suggest to prospective clients that any services is available other than those services listed are as an available. service as described in compliance with the provisions of this chapter.
M. “Sole Proprietorship” means a massage establishment where the owner owns one hundred percent of the business and has one or no other employees or independent contractors.
IN. The term "specified anatomical areas" means any of the following areas of the human body: pubic region, human genitals, perineum, anal region, and the areas of the female breasts that include the areola and the nipple.
JO. "Holistic health practitioner" means a non-medical or other health care therapist who uses acupressure (excluding "acupuncture") or a massage specialty and therapeutic approach in caring for clients, and who is not licensed by the state of California.
P. “Visitor” means any individual not retained or employed by the massage establishment and not receiving or waiting to receive massage therapy services, but excluding law enforcement personnel or government officials performing governmental business.
Q. “Working directly under the supervision” means that the person is an employee of the licensed person, is working at the same location as the licensed person, has his or her work supervised by the licensed person, and that the licensed person is present when the employee is performing massage. This exemption shall not apply if the business performs massage on persons for whom the licensed person does not provide professional services.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.040 Massage operator permit required.
A. It is unlawful for any person to operate a massage establishment in or upon any premises within the city without first obtaining the permit from the Department of Public Safety as required by this chapter and Chapter 10.70, except as exempted by Section 10.79.170.
B. A massage establishment police regulated permit required by this chapter and Chapter 10.70 shall be valid for one year, coinciding with the city business license effective and expiration dates. Permit renewal shall be made by the applicant within thirty days prior to the expiration of the permit. If an application for renewal of a permit and all required information is not timely received and the permi t expires, no right or privilege to continue the massage establishment governed by Chapter 10.79 shall exist.
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C. It is unlawful for the operator, owner, or other responsible person, of a massage establishment to employ or otherwise allow a person to perform massage for compensation on the premises, unless that person has a who does not have a valid massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code or CAMTC certificateand unless that person is identified as an authorized massage practitioner on the permit issued pursuant to this chapter.
D. The owner or operator of a massage establishment shall submit a revised list with the information specified in Section 10.70.030.B.15 to the police department within five business days upon any change to the list. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.050 Massage technician's certification required.
A. It is unlawful for any person to perform services as a massage technician without a valid massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapte r 10.5 of the California Business and Professions Code.
B. A massage practitioner certification does not authorize the operation of a massage establishment. Any person or massage technician who desires to operate a massage establishment must apply separat ely to the city for a permit and a business license.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.060 Minimum facilities required.
No permit to conduct a massage establishment shall be granted unless an inspection by the chief of police or designee and the county health officer and the fire and building officials demonstrates that the proposed establishment does or will comply with each of the following minimum requirements:
A. A recognizable and legible sign is posted at the main entrance identifying the premises as a massage establishment;
B. Minimum lighting of at least forty watts is provided in accordance with the building code of t he city; C. Minimum ventilation is provided in accordance with the building code of the city; D. Equipment approved by the health department for disinfecting and sterilizing instruments used in performing acts of massage is provided;
E. Hot and cold running water is provided at all times; F. Closed cabinets are provided, which cabinets shall be utilized for the storage of clean linen; G. Adequate dressing, locker, and toilet facilities are provided for patrons. A minimum of one dressing room containing a separate locker for each person to be served, which locker shall be capable of being locked, and a minimum of one toilet and one wash basin shall be provided by every massage establishment;
H. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. Wooden surfaces must be painted with a washable, mold resistant paint. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments and toilet rooms must be thoroughly cleaned and disinfected each day the business is in operation with a disinfectant approved by the
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health department. Bathtubs must be thoroughly cleaned and disinfected afte r each use with a disinfectant approved by the health department; and
I. A minimum of one separate wash basin is provided in each massage establishment for the use of employees of any such establishment, which basin shall provide soap or detergent and hot and cold running water at all times, and is located within or as close as practicable to the area devoted to the performing of massage services. In addition, there must be provided at each washbasin sanitary towels placed in permanently installed dispensers.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.070 Massage establishment operating requirements.
No person, association, partnership, or corporation may engage in, conduct or carry on, or permit to be engaged in, conducted or carried on the operation of a massage establishment unless each and all of the following requirements are met:
A. Massage operations may only be carried on, and the premises may only be open, between the hours of 10:00 a.m. and 10:00 p.m.
B. A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises. The service shall be described in readily understandable language in English and may also then be described in any other language. No owner, operator, responsible managing employee, manager, permittee, or licensee in charge of or in control of the massage establishment shall permit and no massage technician shall offer or perform, any service other than those posted.
C. It is unlawful for a massage establishment to operate under any name or conduct business under any designation not specified in the massage establishment permit issued pursuant to this chapter.
CD. The massage establishment business tax license, massage establishment permit, and a copy of the permit CAMTC certification of each and every massage technician employed by or working in the establishment must be displayed in an open and conspicuous public place on the premises.
DE. Hot and cold running water under pressure shall be provided to all washbasins, bathtubs, showers, and similar equipment. Each washbasin shall be provided with soap or detergent and sanitary towels placed in permanently installed dispensers. A trash receptacle shall be provided in ea ch toilet room.
EF. Clean and sanitary towels, sheets and linens shall be provided for each patron receiving massage services. No common use of towels or linens shall be permitted, and reuse is prohibited unless they have been first laundered. Heavy white paper may be substituted for sheets, provided that such paper is used once for each person and then discarded into a sanitary receptacle.
FG. Disinfecting agents and sterilizing equipment shall be available for any instruments used in performing any massage. Instruments will be disinfected or sterilized after each use.
GH. Pads used on massage tables shall be covered in a workmanlike manner with durable, washable plastic or other waterproof material.
HI. Each establishment shall provide to all patrons clean, sanitary, and opaque coverings capable of covering the patron's specified anatomical areas. Such coverings shall be used for one customer only and shall not be reused without first being cleaned.
IJ. No owner, operator, responsible managing employee, manager, or permittee in charge of or in control of a massage establishment shall permit a massage to be given unless the patron's specified anatomical areas are covered during the entire massage by the covering referred to in subsection (HI).
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JK. With the exception of bathrooms or dressing rooms not open to public view, no person or persons shall be permitted in any area within the massage establishment which is used in common by the patrons or which can be viewed by patrons from such an area, unless the specified anatomical areas of all persons within that area are fully covered.
KL. It is unlawful for an owner, operator, responsible managing employee, manager, permittee in charge of or in control of a massage establishment to permit any massage technician to perform any service or task while in the presence of a patron or to be on the premises of a massage establishment during its hours of operation unless the massage technician is dressed in a manner that does not violate paragraph (10) of subdivision (a) of Section 4609 of the California Business and Professions Code.
LM. Any person performing services as a massage technician must wear a visible CAMTC identification card and have a copy of their driver's license or any other photo identification card issued by a state or federal agency readily available for inspection by city or county investigating officials.
MN. An operator or owner must be on the business premises at all times during hours of operat ion of the business.
NO. For each massage service provided, every massage establishment shall keep a complete and legible written record of the following information: the date and hour that service was provided; the service received; the name or initials of the employee entering the information; and the name of the massage practitioner administering the service. Such records shall be open to inspection and copying by the chief of police or designee, or may be used by any massage practitioner or operator as records of service provided, but may not be provided to other parties by the massage practitioner or operator unless otherwise required by law. Such records shall be retained on the premises of the massage establishment for a period of two years and be immediately available for in spection during business hours.
OP. Persons of a massage establishment outside the waiting area shall be a patron, employee, or the massage establishment owner or operator.
Q. Visitors shall only be permitted in the waiting area; however, the following e xceptions may apply:
a. The parent or guardian of a patron who is a minor may be present in the massage therapy room with that minor;
b. The minor of a patron may be present in the massage therapy room with the patron when necessary for the supervision of the minor; or
c. The conservator, aid, or other caretaker of a patron who is elderly or disabled may be present in the massage therapy room with that elderly or disabled person.
R. No massage establishment located in a building or structure with exteri or windows fronting a public street, highway, walkway or parking area shall block visibility into the interior reception and waiting area through the use of curtains, closed blinds, tints, or any other material that obstructs, blurs, or unreasonably darkens the view into the premises.
PS. All signs shall be in accordance with the current ordinances of the City of National City. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.080 Massage establishment—Prohibited conduct.
In addition to the conduct/activities, items, and/or substances prohibited by federal and state laws, the following conduct is prohibited at massage establishments:
A. A. The sale, service, or consumption of alcohol or marijuana; and
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(Supp. No. 60)
B. Operate under any name or conduct business under any designation not specified in the massage establishment permit issued pursuant to this chapter; and C. The employment of a person lacking state certification as a receptionist without prior notification and approval by the license authority; and
A.D. Continue to operate following the sale or transfer of any interest in the massage establishment to a person who was not identified as an owner in the massage establishment permit application; and E. Audio and/or video recording of, or monitoring of, the patron, the massage therapist, or the massage therapy, without the prior written consent of the patron; and F. Residing in or at the massage establishment by any person including but not limited to the operator, owner, responsible person, or employee of the massage establishment; and G. Advertising or marketing illegal activity, advertising or marketing sexual ly suggestive content related to massage therapy , or advertising or marketing sexual content in the promotion of the massage establishment; and
H. Use or possession of adult-oriented merchandise, including "sex toys" and/or condoms, in any part of a massage establishment; and
I. Any sexual activity at a massage establishment; and
J. No owner, operator, responsible managing employee, manager, permittee, or licensee in charge of or in control of a massage establishment shall permit any person to massage or intentionally touch the specified anatomical areas of another person while performing the services of a massage technician. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.090 Off-premises massage—Prohibited.
It is unlawful for any person to engage in, conduct, carry on, or permit to be engaged in, conducted or carried on, massage, for any form of consideration, in any hotel room, motel room, guesthouse or other place of public accommodation. This section shall not be construed to prohibit:
A. Maintaining a licensed massage establishment upon the premises of a place of public accommodation; or
B. The holder of a massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code from giving or adm inistering massages within hospitals, convalescent centers, rest homes, offices, or the private home of a patron.
For the purposes of this section, offices and private homes shall not include hotel rooms, motel rooms, or guest houses.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.100 Existing businesses—Regulated.
The provisions of this chapter shall be applicable to all persons and businesses described in this chapter whether the described activities in the chapter were established before or after the effective date of this chapter.
Any existing massage technician who performs massage and any massage establishment that employs or utilizes persons to perform massage within the jurisdiction of the city, that operates with a valid and current business license issued by the city and all other necessary approvals issued prior to the effective date of any amended regulations in this chapter or Chapter 10.70, and that operates in compliance with all local, state and federal laws,
Created: 2023-03-17 09:29:46 [EST]
(Supp. No. 60)
ordinances, rules and regulations, must be in full compliance with Chapters 10.70 and 10.79 no later than sixty days following the effective date of any new regulations. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.110 Exemptions.
This chapter shall not apply to:
A. Physicians, surgeons, chiropractors, osteopaths, nurses, psychiatrists, psychologists, acupuncturists, physical therapists, family counselors or other health care professionals who are duly licensed to practice their respective professions by the state of California or who are permitted to practice temporarily under the auspices of an associate or establishment duly licensed by the state of California, pursuant to the Business and Professions Code and persons working directly under the supervision of such licensed persons;;
B. Nurses and other health care professionals who are registered or licensed under the laws of this state and administer a massage in the normal course of professional health care duties; BC. A trainer of any duly constituted amateur, semi-professional, or professional athlete or athletic team athletic team or athlete who administers massage in the normal course of training duties to the team or athlete and trainers in conjunction with a specific athletic event such as an outdoor road or bike race;
D. Barbers, beauticians, cosmetologists, and estheticians, and other persons duly licensed to practice any healing art duly licensed under the laws of the state who administer a massage incidental to a bar ber or beauty service provided in the normal performance of their profession , and who perform massages only on the neck, face, and/or scalp of the customers. This exemption shall apply only if massage is provided from a fixed and permanent location of business; E. Therapeutic massage administered in or under the auspices of any health facility, hospital , nursing homes, sanitariums, or other establishment duly licensed under California statutes in which the above- described persons practice their respective professions, provided the massages are given only by exempt individuals or persons acting under their supervision; F. Any bona fide personal fitness training centers, gymnasiums, athletic facilities or health clubs which offers tennis, racquetball, swimming or other sport activities and possesses a sauna or steam room.
Massage shall only be administered to members of the athletic club by persons who are exempt under this section.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.120 Inspection by officials.
The city, county, or any investigating official shall have the right to enter the premises of the massage establishment from time to time during regular business hours to conduct reasonable inspections to enforce compliance with this chapter, Chapter 10.70, and with building, fire, electrical, plumbing, and/or state and local health and safety regulations.
No person shall refuse to permit or interfere with a lawful inspection of the massage establishment by city or county investigating officials.
(Ord. No. 2019-2454, § 8, 1-22-2019)
Created: 2023-03-17 09:29:46 [EST]
(Supp. No. 60)
10.79.130 Unlawful massage establishment or operation.
Any massage establishment operated, conducted or maintained contrary to the provisions of this chapter, Chapter 10.70 and/or state and federal laws shall be and the same is hereby declared to be unlawful and a public nuisance. The city attorney may, in addition to, or in lieu of prosecuting a criminal act ion hereunder, commence an action or actions, proceeding or proceedings for the abatement, removal, or enjoinment thereof, in any manner provided by law, including as provided in Chapter 10.70. (Ord. No. 2019-2454, § 8, 1-22-2019)
ORDINANCE NO. 2023-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, AMENDING CHAPTER 10.70 POLICE REGULATED BUSINESS REGULATIONS OF THE
NATIONAL CITY MUNICIPAL CODE
WHEREAS, the City of National City (the “City”), pursuant to police powers delegated to it by the California Constitution, has the authority to enact or amend laws that promote the public health, safety, and general welfare of its residence; and
WHEREAS, pursuant to the terms and provisions of the Government Code of the State of California, proceedings were duly initiated for the amendment of the National City Municipal Code; and
WHEREAS, the National City P olice Department has requested that the National City Municipal Code (NCMC) Section 10.70 Police Regulated Business Regulations be reviewed and updated; and
WHEREAS, the National City Police Department submitted Section 10.70 of the NCMC to the California Massage Therapy Council (CAMTC) for review to which they have provided several recommended corrections, additions and modifications to aid the City of National City Police Department, Code Enforcement, and the City Attorney’s Office with enforcement, regulation, and removal of illicit massage parlors in the City of National City; and
WHEREAS, pursuant to a published 10 -day notice of the adoption of said Ordinance, a public hearing was held by the City Council on November 7, 2023, and at said public hearing, all persons interested were given the opportunity to appear and be heard before the City Council.
NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS:
Section 1. All protests, if any, against said amendment to the Municipal Code a nd each of them be and hereby are denied and overruled.
Section 2. Section 10.70 Police Regulated Business Regulations is hereby amended to read as follows in Attachment A attached to this Ordinance.
Section 3. This Ordinance shall take effect and be in force thirty (30) days from the date of its passage, and before the expiration of fifteen (15) days after its passage, it or a summary of it, shall be published once, with the names of the members of the City Council voting for and against the same in the Star News, a newspaper of general circulation published in the County of San Diego, California.
Section 5. The City Clerk shall certify to the adoption of this Ordinance and shall publish in accordance with the law.
INTRODUCED at Regular Meeting of the City Council of the City of National City, held on this November 7, 2023
PASSED and ADOPTED this day of , 2023.
__________________________
Ron Morrison,
Mayor
ATTEST:
____________________
Shelley Chapel, MMC
City Clerk
APPROVED AS TO FORM:
___________________
Barry J. Schultz,
City Attorney
Chapter 10.70 POLICE REGULATED BUSINESS REGULATIONS
10.70.010 Purpose and intent—Permit required.
A. It is the purpose and intent of the city council to establish procedures for permit issuance and regulation of certain businesses and activities as police regulated for the protection of the public health, safety, and welfare. Businesses identified in this Division X (Chapters 10.70 through 10.79) have a higher degree of potential for one or more types of illicit activity - prostitution, disorderly conduct, gambling, fraudulent practices, or the concealment or facilitation of transfers of stolen property. T herefore, regulation of the operations of these establishments is appropriate to protect legitimate business practice and the public health, safety and welfare.
B. A business, activity or a performer or technician which is identified in Chapters 10.71 through
10.79 is designated a "regulated business," "regulated activity," "regulated performer" or "regulated technician," as the case may be, and the specific regulations applicable to their conduct are set out in Chapters 10.71 through 10.79. The procedures set out in this Chapter
10.70 shall uniformly govern the administration and appeals process regarding the issuance, denial, suspension, or revocation of any permit required to operate as a regulated business or activity or as a regulated performer or tech nician pursuant to Chapters 10.71 through
10.79. C. The issuance of a permit pursuant to this chapter does not excuse a regulated business, activity, performer, or technician from complying with any other revenue or regulatory requirement of this code or state law. A separate permit shall be required for each type of activity regulated by Chapters 10.71 through 10.79, unless otherwise provided. The issuance of a certificate or permit under other provisions of this code does not excuse compliance with or create a defense to any violation of the requirements of this chapter or Chapters 10.71 through 10.79, as applicable, or any other provisions of law or ordinance, including conditional use permits required under Title 18.
D. It is unlawful for any person to operate a business or activity or perform or practice as a performer or technician regulated by this chapter and Chapters 10.71 through 10.79, as applicable, without a valid permit issued by the chief of police or designee, or to operate, perform or practice while the permit is suspended or revoked. Each day a violation of this section exists constitutes a separate misdemeanor.
(Ord. 2220 § 1(part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.020 Definitions.
For purposes of Chapters 10.70 through 10.79, the following definitions shall apply:
A. "Person" means and includes a natural person, a partnership, joint venture or a corporation.
B. "Operator" means any person who supervises, manages, directs, organize s, controls, or in any other way is responsible for or in charge of the daily operation, conduct or activities of the regulated business or activity.
C. "Owner" means any person or entity having an ownership interest in the establishment.
D. "Responsible person" means any person who is an owner, operator, or manager, and includes any employee or agent in apparent charge of the premises for which the application is made or required or a permit is issued.
E. "Permit" means a permit issued by or under the a uthority of the chief of police or designee that authorizes activity regulated under Chapters 10.71 through 10.79.
F. "Permittee" means an owner to whom a permit issued by or under the authority of the chief of police or designee that authorizes activity regulated under Chapters 10.71 and
10.79. G. "Applicant" means the natural person(s) who complete and sign an application pursuant to this chapter.
(Ord. 2220 § 1 (part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.030 Applications.
A. Any person required to obtain a permit pursuant to Chapters 10.71 through 10.79 shall file a written application with the chief of police or designee on a city-approved form, and pay the non-refundable fee set forth in the National City fee schedule, to re coup all investigative costs. The applicant shall provide proof of payment of any regulatory fees imposed by the state of California or county of San Diego contemporaneously with the filing. Written application forms prepared by the chief of police or designee may require the applicant to be photographed, finger printed and to provide, in addition to the information listed below, such other information as is reasonably necessary to carry out the purposes of this chapter. The application form shall be approv ed as to form by the city attorney. For massage establishments, the application shall be completed and signed by the owner of the proposed massage establishment, if a sole proprietorship; one general partner, if the owner is a partnership; or two officers, if the owner is a corporation.
B. An applicant for a permit shall submit the following information:
1. The full name of the business, including the name under which the business will be conducted;
2. The address where the business is to be conducted;
3. The applicant's full, true name, and any other names used;
4. The applicant's date of birth;
5. The applicant's present residential address and telephone number;
6. The previous addresses of the applicant for the three years immediately prior to the date of the application and the dates of residence at each;
7. Applicant's height, weight, color of eyes and hair;
8. Three recent portrait photographs at least two inches by two inches taken within the preceding six months, which accurately depict the current appearance of the applicant;
9. The applicant's driver's license and/or identification card issued by a state or federal governmental agency, or other photographic identification bearing a bona-fide seal of a foreign government;
10. If the owner i s a corporation, domestic stock, domestic non -profit, qualified foreign corporation, limited liability company, general partnership, or limited partnership, the application shall include the following:
a. A business entity status report issued by the California Secretary of State; b. Organizational documents for the business entity including but not limited to a copy of the fictitious name statement and/or articles of incorporation;
c. Full name, date of birth, residential address, and business address for each officer and director;
d. The name, date of birth, and residence addresses of the responsible employee(s) to be principally in charge of the day-to-day operations of the establishment. e. The full name of the owner, including any DBAs.
11. The tax identification number for the business;
12. The name, address, email address, and telephone number of the real property owner where the business will be operated, and a copy of the lease or rental agreement, if applicable;
13. The business license and permit history of the applicant, including whether the applicant when previously operating in this or another city or state under a certificate, license or permit, has had that certificate, license or permit suspended or revoked, the reason therefore, and the business activity or occupation subsequent to the suspension or revocation;
14. For massage establishment businesses regulated under Chapter 10.79, a copy of the massage practitioner certificate issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code for each owner who has been issued a certificate, or a statement that such a certificate has not been issued or has been previously denied or revoked by the California Massage Therapy Council with information regarding the reason therefore;
15. For massage establishment businesses regulated under Chapter 10.79, a list of all persons who will administer massage, including but not limited to employees and independent contractors. Such list shall include the full true name and any other names used, date of birth, residence address and copy of their driver's license or any other photo identification card issued by a state or federal agency, and a copy of the valid massage practitioner certificate issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code;
16. For massage establishment businesses regulated under Chapter 10.79, all services must be described on the application for the permit;
17. Business, occupation, or employment history of the applicant for the three years immediately preceding the date of the application;
18. A list, broken down for each applicant, each responsible employee(s) to be principally in charge of the day -to-day operations of the establishment, and all partners if a partnership, or all officers and directors if a corporation, of all criminal convictions, including pleas of nolo contender, within the preceding five years, including those dismissed or expung ed pursuant to Penal Code section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction, as well as a full explanation of the circumstances;
19. A complete set of fingerprints taken for each owner if a sole proprie torship, or each natural person, including the owner and operator or person to be principally in charge of the day -to-day operations of the establishment; unless in the case of massage establishment businesses, they hold a valid massage practitioner certif icate issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code;
20. A signed statement authorizing the city, through its officers, agents, and employees, to conduct a background check of the applicant, owners(s), and natural persons to be principally in charge of the day -to-day operations to seek information and conduct an investigation into the truthfulness of the statements set forth in the application and to ensure continual compliance with all applicable provisions of the law;
21. A signed acknowledgment that the owner(s) shall be responsible for the conduct of all employees or independent contractors working on the premises of the business and acknowledging that failure to comply with the provisions of this chapter or any local, state or federal law and, for massage establishment businesses regulated under Chapter 10.79, failure to comply with California Business and Professions Code section 4600 et seq., may result in the suspension, revocation, or denial of the permit;
22. An acknowledgement that the applicant consents to periodic inspection of the regulated premises or activity, and that revocation of the permit may occur for any unjustified refusal to allow the same;
23. An acknowledgement that the applicant has received a copy of Chapter 10.70 and any applicable chapter from Chapters 10.71 through 10.79 which regu late the business or activity of the applicant; and
24. A signed statement by the applicant certifying under penalty of perjury that all information in the application is true and correct, and acknowledging that failure to be truthful may result in denial of the application.
(Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.040 Investigation.
The chief of police or designee, upon receipt of a written application for a permit and payment of the necessary fees shall promptly conduct an appropriate investigation to determine whether a permit should be issued in accordance with the provisions of this chapter. The chief of police or designee shall consider any relevant factual material relating to such application. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.050 Permit issuance or denial.
A. Issuance. The chief of police or designee may deny a permit application, based upon investigation and substantial evidence, if he or she finds one or more of any of the following:
1. That the operation or the premises of the activity, as proposed by the a pplicant, would violate any applicable laws, including but not limited to the city's fire, building, zoning and health regulations; or
2. That the applicant, any other person who will be directly engaged in the management and operation of the regulated business or activity, or an applicant who is to participate or perform services as a regulated technician or performer:
a. Has been convicted in any court of competent jurisdiction by a final judgment of any misdemeanor or felony, within the five years preceding the date of application, which rationally and reasonably relates to the conduct of the regulated activity; or b. Has allowed acts to occur in any business operations for the preceding five years which would violate those sections of the Penal Code l isted in Section
10.70.050A.2.d, or any provision of this chapter or Chapter 10.79, irrespective of a conviction or acquittal; or
c. Has had a permit to operate a business that is or would be regulated pursuant to Chapters 10.70 through 10.79 suspended or revoked in any jurisdiction, within the preceding five years; or
d. Within the five years immediately preceding the date of the filing of the application, has been convicted in a court of competent jurisdiction of any of the following offenses:
(1) An offense that requires registration under California Penal Code Section 290; or
(2) An offense which is a violation of Sections 311 through 311.7, 313.1, 314, 315, 316, 318 or 647(a), 647(b), 647(d), 647(h), 653.23 or 290 of the California Penal Code; or
(3) An offense that is a reduction from any offense listed in Section
10.70.050A.2.d. (1) or (2) to some other offense under the Penal Code which would not require registration, pursuant to a plea of guilty negotiated prior to trial; or
(4) Any misdemeanor or felony involving theft of property; or
3. That the applicant has made any false, misleading or fraudulent material statement of fact in the permit application, or any other related document required by the city in connection with the application; or
4. The applicant has not complied with the provisions of this chapter and Chapter
10.79; or
5. The applicant has had a massage establishment permit or other similar license or permit denied, suspended or revoked for cause by any governmental agency; or the applicant has any massage practitioner certification denied, suspended or revoked by the California Massage Therapy Council.
5. For establishments regulated by Chapter 10.79, the applicant proposes to locate the massage establishment in the same building as a massage establishment that has surrendered its permit or had its permit revoked within five years of the application date because a person engaged in any criminal conduct and/or violation of this chapter or Chapter 10.79 while on the premises of the former massage establishment; or
6. That the application is incomplete and the required information or documents were not submitted within twenty days of a request for the information or documents.
B. Timeliness and Conditional Issuance of Permit. Upon receipt of a properly completed application, the chief of police or designee shall either approve or deny the application within thirty days. Failure to take action on a permit application within thirty days shall not result in an automatic approval. If the chief of police or designee is awaiting investigation results from another governmental agency within those thirty days, the chief of police or designee shall issue a revocable conditional permit on the thirtieth day if a local records check fails to disclose any disqualifying information and the operation would otherwise be in compliance with all other applicable laws and regulations; except that a revocable conditional permit shall not be issued to an escort or massage technician or operator until it af firmatively appears that there is no disqualifying information, in order to avoid the potential for physical harm to
a potential patron pending final action. Any revocable conditional permit shall be revoked if further investigation discloses the existence of a disqualifying factor under this Section
10.70.050.
C. An applicant whose application is denied based on subsection (A)(1) through (A)(5) of this section is not eligible to reapply for five years after notice of denial. An applicant whose application is denied for failure to comply with subsection (A)(6) is not eligible to reapply for one hundred eighty days after notice of denial.
D. Permits must be exercised within one year of issuance or shall be deemed abandoned.
E. A permit is deemed abandoned if the establishment which has exercised its permit ceases operations covered by the permit for one hundred eighty days.
F. A permit issued pursuant to this chapter shall not be operative until and unless all other required local, state, or federal licenses and permits have been obtained. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.060 Notice of decision.
Upon taking final action to issue or deny a permit application, or to suspend or revoke a permit under Section 10.70.080, the chief of police or designee shall give written notice of decision and the reasons to the applicant or permittee and to any other p erson requesting such notice.
The notice of decision shall inform the applicant or permittee of the right to appeal under Section
10.70.070 and the time limits prescribed for such review. The chief of police or designee shall file a proof of service with the city clerk establishing the method and date of service. The issuance of the notice of decision shall begin the running of any period of limitation for judicial review under Section 10.70.070 as follows:
A. Three calendar days after mailing a notice of decision to the address shown on the application by both first class mail, postage prepaid with return address clearly marked, and by certified mail, return receipt requested. Receipt of either by the addressee shall constitute service of notice. Actual receipt, however, shall not be a pre-requisite to the running of any period of limitation.
B. Immediately upon personal service or personal delivery of the notice of decision to the applicant or permittee.
(Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.070 Appeal.
A. Any applicant or permittee aggrieved by the decision of the chief of police or designee regarding the issuance, conditional issuance, suspension, revocation or denial of a permit, shall have a right to request a hearing to appeal or contest the decision pursuant to Section
1.42.020.
(Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.080 Suspension and revocation.
A. The chief of police or designee may suspend or revoke any permit issued under the provisions of this chapter if he or she finds that:
1. The operation conducted by the permittee violates or has violated any applicable laws, including but not limited to the city's building, zoning and health regulations and Chapters 10.70 through 10.79, as applicable;
2. The applicant has failed to comply with a final court order or administrative action of an investigatory agency finding a violation of applicable federal, state, and local wage and hour laws, including, but no limited to, the Federal Fair Labor Standards Act, the California Labor Code, and any local minimum wage ordinance or prevailing wage requirements. For the purposes of this subsection, a final court order or administrative action is one as to which there is no pending appeal and the time for filing an appeal has passed.
3. The permittee, including a regulated performer or technician, or any other person who is directly engaged in the management and operation of the regulated business has, while the permit is in effect:
a. Allowed, committed or been convicted of an act that constitutes a violation of law which rationally and reasonably relates to the conduct of the regulated activity, b. Allowed or committed acts listed in Section 10.70.050(A)(2) to occur at a regulated business, irrespective of adjudication, conviction or acquittal, or c. Allowed a regulated performer or technician with a contagious or communicable disease to perform services under the auspices of the permittee; or
4. The applicant or permittee had knowingly made a false, misleading, or fraudulent material statement of fact in the permit application or any other document required in connection with the application.
B. The chief of police or designee shall serve the permittee with a written order stating the reasons for the suspension or revocation. The order may be fo r a limited period, not to exceed ninety days, or for permanent revocation. The order shall advise the permittee of appeal rights under Section 10.70.070. The chief of police or designee may issue the order without regard to the status of prosecution or finality of a conviction affecting a permittee, so long as the chief of police or designee has determined that sufficient facts exist to justify the suspension. The order shall be effective immediately if personally served, or three calendar days after it ha s been deposited in the course of regular transmission in the United States Postal Service.
C. Except as provided under Section 10.70.080(D), immediately upon the order becoming effective, the permittee shall cease all operations under the permit and shal l surrender the permit to the chief of police or designee.
D. In lieu of issuing an order of suspension or revocation, the chief of police or designee may impose conditions of probation for a specified duration not to exceed one year, during which period the permittee shall be subject to the order of suspension or revocation if the chief of police or designee determines those conditions have been violated. If the permittee accepts the order of probation, no appeal shall be allowed under Section 10.70.070. If, however, the permittee objects to the terms of probation, probation shall not be allowed, the order of suspension or revocation shall take effect, and appeal rights of the permittee under Section
10.70.070 shall then be applicable.
E. Only when an appeal is taken to the city council shall the order of suspension or revocation be stayed pending determination by the city council in the manner set forth in Section
10.70.070 of this chapter. The determination of the city council will be final and conclusiv e and constitute the exhaustion of administrative remedies. A written notice of decision of city
council shall be served on the permittee in accordance with Section 10.70.060, and service shall begin the period of limitation for judicial review under Code of Civil Procedure Sections 1094.6 or 1094.8, whichever is applicable.
F. Police permits issued for an establishment to conduct business regulated under Chapters
10.71 through 10.79 are separate from and independent of any conditional use permit that is required or issued under the provisions of Title 18 of this code. Revocation or suspension of a police permit shall not operate to revoke or suspend a conditional use permit, notwithstanding that the same or similar terms and conditions may be applicable to both permits. Revocation or suspension of a police permit affects only the authority of the establishment to provide or allow a particular form of entertainment or activity at the premises for which the police permit is issued. The establishment may conti nue to conduct all other business for which it is licensed or allowed by law to conduct, unless separate action is taken to abate the establishment as a public nuisance or to revoke or suspend any other issued permit, including a conditional use permit.
(Ord. 2220 § 1 (part), 2003: Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.090 Posting or exhibiting.
A. Permits issued to an operator shall be posted in plain view at the main entrance to the premises where the business or activity for which the permit is issued is conducted, and shall remain posted while the permit is in force.
B. The massage establishment shall comply with the requirements in California Civil Code Section 52.6 related to the posting of information for victims of human trafficking.
B. Certificates issued to a regulated performer or technician shall be carried on their person, except that the permit of a regulated performer or technician may instead be posted on the regulated premises together with the permit issued for the regulated business or activity.
C. It is unlawful and a misdemeanor for any person subject to this chapter or Chapters 10.71 through 10.79 to fail to post or carry an issued permit or certificate as required by this section, or to fail to exhibit an issued permit or certificate upon demand of the chief of police or designee.
(Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.100 Inspection of premises.
A. Issuance of a police permit is conditional upon the premises regulated under Chapters 10.71 through 10.79 being available for reasonable inspection by the police department, the fire department, the health officer, or city code compliance officials followi ng approval of the application and during the operating hours of the regulated business or activity. Refusal to allow reasonable inspection during operating hours upon demand of an authorized official is grounds for the suspension or revocation of an issued permit, or the denial of an application for a permit. No application shall be granted if the premises do not meet applicable requirements of law or ordinance.
B. If necessary or appropriate, the official may obtain an inspection warrant after inspection has been denied. Inspection pursuant to an issued inspection warrant does not mitigate or exonerate the suspension or revocation of the permit.
C. The county health officer is authorized to charge inspection fees established within the applicable fee schedule of the county of San Diego or the National City fee schedule. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.110 Duration.
Unless provided otherwise in Chapters 10.71 through 10.79, permits issued pursuant to this chapter remain valid until revoked, surrendered, or abandoned. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.120 Transfer of permit.
It is unlawful to transfer a permit from one person to another. It is unlawful to use a permit at another location except with the written approval of the chief of police or designee. An application for transfer of permit to another location shall be in writing and accompanied by a processing fee established in the National City fee schedule. The application for transfer shall contain the same information required for an initial application for a permit. Any transfer of a permi t in violation of this Section 10.70.120 is void and shall confer no rights upon the transferee nor create any obligation upon the city to honor the transfer or to afford notification or appeal rights under Sections 10.70.060 or 10.70.070 to either the transferor or the transferee. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.130 Transition provisions.
A. A business lawfully conducting business in the city as of the effective date of this Chapter
10.70 that is to be regulated by Chapters 10.71 through 10.79 will be issued an appropriate police permit by the chief of police or designee without further payment of fees, provided the business or activity was otherwise in compliance with the regulatory and fiscal provisions of the municipal code in effect immediately prior to the enactment of this ordinance. Permits issued pursuant to this Section 10.70.130(A) shall thereafter be fully subject to the provisions of Chapter 10.70 and Chapters 10.71 through 10.79, as applicable, regarding administration, operation and licensing.
B. An existing business that does not meet the compliance standards for permit issuance under Section 10.70.130(A), and all new businesses commencing operations shall comply with Chapter 10.70 and Chapters 10.71 through 10.79, as applicable. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.140 Notice of changes.
A. Permittees of establishments governed by Chapter 10.79 shall only allow persons certified by the California Massage Therapy Council to provide massages at, or in association with the establishment, and shall immediately notify the chief of police or designee, in writing, of any change to the list provided pursuant to Section 10.70.030(B)(14). (Ord. No. 2019-2454, § 6, 1-22-2019)
10.70.150 Public nuisance.
Each regulated business or any business that is required to be regulated that operates in violation of Chapter 10.70 through 10.79, as may be applicable, is a public nuisance and may be enjoined civilly or administratively. In addition, and to the extent not expressly provided elsewhere in this code, it is unlawful and a misdemeanor to maintain a public nuisance. (Ord. 2204 § 5 (part), 2002) (Ord. No. 2019 -2454, § 6, 1 -22-2019)10.70.160 Violations and regulatory enforcement.
Violation of any of the mandatory requirements or prohibitions contained in Chapters 10.70 through 10.79 are misdemeanors and constitute grounds for suspension or revocation of an issued permit, except that any requirement or prohibition designated as "regulatory only" will be treated only as grounds for suspension or revocation of an issued permit, and criminal prosecution may not occur for that violation.
(Ord. 2204 § 5 (part), 2002) (Ord. No. 2019-2454, § 6, 1-22-2019)10.70.170 Severability.
The City Council declares that the invalid ity of any section or portion of Chapters 10.70 through 10.79 shall not affect the validity of any other remaining section or portion; that the council would have adopted each of those remaining portions, notwithstanding any later declared invalidity. Any provision determined invalid under the preceding sentence may either be severed or, if it can be judicially interpreted in a way that could harmonize it with the remaining provisions, then it may be so judicially interpreted and, as interpreted, be applied so as to give full purpose, meaning, and effect to the remaining provisions.
(Ord. 2204 § 5 (part), 2002)(Ord. No. 2019-2454, § 6, 1-22-2019)
ORDINANCE NO. 2023-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY, CALIFORNIA, AMENDING CHAPTER 10.7 9 MASSAGE ESTABLISHMENTS
REGULATIONS OF THE NATIONAL CITY MUNICIPAL CODE
WHEREAS, the City of National City (the “City”), pursuant to police powers delegated to it by the California Constitution, has the authority to enact or amend laws that promote the public health, safety, and general welfare of its residence; and
WHEREAS, pursuant to the terms and provisions of the Government Code of the State of California, proceedings were duly initiated for the amendment of the National City Municipal Code (NCMC); and
WHEREAS, the National City Police Department submitted Section 10.7 9 Massage Establishments of the NCMC to the California Massage Therapy Council (CAMTC) for review to which they have provided several recommended corrections, additions and modifications to aid the City of National City Police Department, Code Enforcement, and the City Attorney’s Office with enforcement, regulation, and removal of illicit massage parlors in the City of National City; and
WHEREAS, pursuant to a published 10 -day notice of the adoption of said Ordinance, a public hearing was held by the City Council on November 7, 2023, and at said public hearing, all persons interested were given the opportunity to appear and be heard before the City Council.
NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF NATIONAL CITY,
CALIFORNIA, DOES RESOLVE, DECLARE, DETERMINE, AN D ORDER AS FOLLOWS:
Section 1. All protests, if any, against said amendment to the Municipal Code and each of them be and hereby are denied and overruled.
Section 2. Section 10.79 Massage Establishments is hereby amended to read as follows in Attachment A attached to this Ordinance.
Section 3. This Ordinance shall take effect and be in force thirty (30) days from the date of its passage, and before the expiration of fifteen (15) days after its passage, it or a summary of it, shall be published once, with the names of the members of the City Council voting for and against the same in the Star News, a newspaper of general circulation published in the County of San Diego, California.
Section 4. The City Clerk shall certify to the adoption of this Ordinance and shall publish in accordance with the law.
INTRODUCED at Regular Meeting of the City Council of the City of National City, held on this November 7, 2023
PASSED and ADOPTED this day of , 2023.
__________________________
Ron Morrison,
Mayor
ATTEST:
____________________
Shelley Chapel, MMC
City Clerk
APPROVED AS TO FORM:
___________________
Barry J. Schultz,
City Attorney
Chapter 10.79 MASSAGE ESTABLISHMENTS1
10.79.010 Title and administration.
This chapter may be referred to as the National City massage establishment ordinance.
Issuance and administration of permits is governed by Chapter 10.70. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.020 Purpose and intent.
It is the purpose and intent of this chapter to provide for the orderly regulation of a massage establishment business in the city in order to protect the public health, safety, and welfare by promulgating minimum standards for the establishment and operation of those businesses and to prevent the facilitation of prostitution.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.030 Definitions.
Whenever in this chapter the following words or phrases are used, they shall mean as follows:
A. "California Massage Therapy Council (CAMTC)" means the state organized non -profit organization created to regulate the massage industry set forth in Chapter 10.5 of Division 2 of the California Business and Professions Code, commencing with section 4600.
B. "CAMTC certificate" means a current and valid certificate issued by the California Massage Therapy Council to a massage technician.
C. “Compensation” means the payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value.
D. “Employee” means any person hired by a massage establishment who renders any service for the business/owner in exchange for any form of compensation from the business, including independent contractors.
E. "Massage" means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances or with or without such supplementary aids as rubbing alcohol, liniments, antiseptic, oils, powder, creams, lotions, ointments, or other preparations commonly used in this practice.
F. "Massage establishment" means an establishment where massage is administered.
G. "Massage practitioner," "massage technician," or "technician" means any person, including a holistic health practit ioner as defined in subsection O, who gives or
1Editor's note(s)—Ord. No. 2019-2454, § 6, adopted Jan. 22, 2019, amended Ch. 10.79 in its entirety to read as herein set out. Former Ch. 10.79, §§ 10.79.010—10.79.110, pertained to similar subject matter, and derived from Ord. 2204 § 8 (part), 2002; Ord. 2220 § 4, 2003).
administers to another person of the same or opposite gender, for any form of consideration, a "massage" as defined in this chapter.
H. "Massage establishment operator" or "operator" means any person, including a holistic health practitioner as defined in subsection O, who operates an establishment to give or administer to another person of the same or opposite gender, for any form of consideration, a "massage" as defined in this chapter. This includes any per son who supervises, manages, directs, organizes, controls, or in any other way is responsible for or in charge of the daily operation, conduct, or activities of a massage establishment.
I. "Massage practitioner certification" means a certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code.
J. “Patron” means any individual that provides financial support to a massage establishment and receives or waits to receive massage therapy services.
K. "Permit" under this chapter means an annual permit to operate a massage establishment as required by this code.
L. “Sexually suggestive advertising” means advertising that depicts any portion of the human body or includes language that would reasonably suggest to prospective clients that services other than those services listed are available.
M. “Sole Proprietorship” means a massage establishment where the owner owns one hundred percent of the business and has one or no other employees or independent contractors.
N. The term "specified anatomical areas" means any of the following areas of the human body: pubic region, human genitals, perineum, anal region, and the areas of the female breasts that include the areola and the nipple.
O. "Holistic health practitioner" means a non -medical or other health care therapist who uses acupressure (excluding "acupuncture") or a massage specialty and therapeutic approach in caring for clients, and who is not licensed by the state of California.
P. “Visitor” means any individual not retained or employed by the massage establishment and not receiving or waiting to receive massage therapy services, but excluding law enforcement personnel or government officials performing governmental business.
Q. “Working directly under the supervision” means that the person is an employee of the licensed person, is working at the same location as the licensed person, has his or her work supervised by the licensed person, and that the licensed person is present when the employee is performing massage.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.040 Massage operator permit required.
A. It is unlawful for any person to operate a massage establishment in or upon any premises within the city without first obtaining the permit from the Department of Public Safety as required by this chapter and Chapter 10.70, except as exempted by Section 10.79.170.
B. A massage establishment police regulated permit required by this chapter and Chapter 10.70 shall be valid for one year, coinciding with the city business license effective and expiration dates. Permit renewal shall be made by the applicant within thirty days prior to the expiration of the permit. If an application for renewal of a permit and all required information is not timely
received and the permit expires, no right or privilege to continue the massage establishment governed by Chapter 10.79 shall exist.
C. It is unlawful for the operator, owner, or other responsible person, of a massage establishment to employ or otherwise allow a person to perform massage for compensation on the premises, unless that person has a valid massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code and unless that person is identified as an authorized massage practitioner on the permit issued pursuant to this chapter.
D. The owner or operator of a massage establishment shall submit a revised list with the information specified in Section 10.70.030.B.15 to the police department within five business days upon any change to the list.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.050 Massage technician's certification required.
A. It is unlawful for any person to perform services as a massage technician without a valid massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code.
B. A massage practitioner certification does not authorize the operation of a massage establishment. Any person or massage technician who desires to operate a massage establishment must apply separately to the city for a permit and a business license. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.060 Minimum facilities required.
No permit to conduct a massage establishment shall be granted unless an inspection by the chief of police or designee and the county health officer and the fire and building officials demonstrates that the proposed establishment does or will comply with each of the following minimum requirements:
A. A recognizable and legible sign is posted at the main entrance identifying the premises as a massage establishment;
B. Minimum lighting of at least forty watts is provided in accordance with the building code of the city;
C. Minimum ventilation is provided in accordance with the building code of the city; D. Equipment approved by the health department for disinfecting and sterilizing instruments used in performing acts of massage is provided; E. Hot and cold running water is provided at all times; F. Closed cabinets are provided, which cabinets shall be utilized for the storage of clean linen;
G. Adequate dressing, locker, and toilet facilities are provided for patrons. A minimum of one dressing room containing a separate locker for each person to be served, which locker shall be capable of being locked, and a minimum of one toilet and one wash basin shall be provided by every massage establishment;
H. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. Wooden surfaces must be painted with a washable, mold resistant paint. Wet and dry heat rooms, steam o r vapor rooms, or steam or vapor cabinets, shower compartments and toilet rooms must be thoroughly cleaned and disinfected each day the business is in operation with a disinfectant approved by the health department. Bathtubs must be thoroughly cleaned and disinfected after each use with a disinfectant approved by the health department; and
I. A minimum of one separate wash basin is provided in each massage establishment for the use of employees of any such establishment, which basin shall provide soap or detergent and hot and cold running water at all times, and is located within or as close as practicable to the area devoted to the performing of massage services. In addition, there must be provided at each washbasin sanitary towels placed in permanently installed dispensers.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.070 Massage establishment operating requirements.
No person, association, partnership, or corporation may engage in, conduct or carry on, or permit to be engaged in, conducted or carried on the operation of a massage establishment unless each and all of the following requirements are met:
A. Massage operations may only be carried on, and the premises may only be open, between the hours of 10:00 a.m. and 10:00 p.m.
B. A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises. The service shall be described in readily understandable language in English and may also then be described in any other language. No owner, op erator, responsible managing employee, manager, permittee, or licensee in charge of or in control of the massage establishment shall permit and no massage technician shall offer or perform, any service other than those posted.
C. It is unlawful for a mas sage establishment to operate under any name or conduct business under any designation not specified in the massage establishment permit issued pursuant to this chapter.
D. The massage establishment business tax license, massage establishment permit, and a copy of the CAMTC certification of each and every massage technician employed by or working in the establishment must be displayed in an open and conspicuous public place on the premises.
E. Hot and cold running water under pressure shall be provided to all washbasins, bathtubs, showers, and similar equipment. Each washbasin shall be provided with soap or detergent and sanitary towels placed in permanently installed dispensers. A trash receptacle shall be provided in each toilet room.
F. Clean and sanitary towels, sheets and linens shall be provided for each patron receiving massage services. No common use of towels or linens shall be permitted, and reuse is prohibited unless they have been first laundered. Heavy white paper may be substituted for sheets, provided that such paper is used once for each person and then discarded into a sanitary receptacle.
G. Disinfecting agents and sterilizing equipment shall be available for any instruments used in performing any massage. Instruments will be disinfected or sterilized after each use.
H. Pads used on massage tables shall be covered in a workmanlike manner with durable, washable plastic or other waterproof material.
I. Each establishment shall provide to all patrons clean, sanitary, and opaque coverings capable of covering the patron's specified anatomical areas. Such coverings shall be used for one customer only and shall not be reused without first being cleaned.
J. No owner, operator, responsible managing employee, manager, or permittee in charge of or in control of a massage establishment shall permit a massage to be given unless the patron's specified anatomical areas are covered during the entire massage by the covering referred to in subsection (I).
K. With the exception of bathrooms or dressing rooms not open to public view, no person or persons shall be permitted in any area within the massage establishment which is used in common by the patrons or which can be viewed by patrons from such an area, unless the specified anatomical areas of all persons within that area are fully covered.
L. It is unlawful for an owner, operator, responsible managing employee, manager, permittee in charge of or in control of a massage establishment to permit any massage technician to perform any service or task while in the presence of a patron or to be on the premises of a massage establishment during its hours of operation unless the massage technician is dressed in a manner that does not violate paragraph (10) of subdivision (a) of Section 4609 of the California Business and Professions Code.
M. Any person performing services as a massage technician must wear a visible CAMTC identification card and have a copy of their driver's license or any other photo identification card issued by a state or federal agency readily available for inspection by city or county investigating officials.
N. An operator or owner must be on the business premises at all times during hours of operation of the business.
O. For each massage service provided, every massage establishment shall keep a complete and legible written record of the following information: the date and hour that service was provided; the service received; the name or initials of the employee entering the information; and the name of the massage practitioner administering the service.
Such records shall be open to inspection and copying by the chief of police or designee, or may be used by any massage practitioner or operator as records of service provided, but may not be provided to other parties by the massage practitioner or operator unless otherwise required by law. Such records shall be retained on the premises of the massage establishment for a period of two years and be immediately available for inspection during business hours.
P. Persons of a massage establishment outside the waiting area shall be a patr on, employee, or the massage establishment owner or operator.
Q. Visitors shall only be permitted in the waiting area; however, the following exceptions may apply:
a. The parent or guardian of a patron who is a minor may be present in the massage therapy room with that minor;
b. The minor of a patron may be present in the massage therapy room with the patron when necessary for the supervision of the minor; or
c. The conservator, aid, or other caretaker of a patron who is elderly or disabled may be present in the massage therapy room with that elderly or disabled person.
R. No massage establishment located in a building or structure with exterior windows fronting a public street, highway, walkway or parking area shall block visibility into the interior reception and waiting area through the use of curtains, closed blinds, tints, or any other material that obstructs, blurs, or unreasonably darkens the view into the premises.
S. All signs shall be in accordance with the current ordinances of the City of National City. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.080 Massage establishment—Prohibited conduct.
In addition to the conduct/activities, items, and/or substances prohibited by federal and state laws, the following conduct is prohibited at massage establishments:
A. The sale, service, or consumption of alcohol or marijuana; and B. Operate under any name or conduct business under any designation not specified in the massage establishment permit issued pursuant to this chapter; and C. The employment of a person lacking state certification as a receptionist without prior notification and approval by the license authority; and D. Continue to operate following the sale or transfer of any interest in the massage establishment to a person who was not identified a s an owner in the massage establishment permit application; and
E. Audio and/or video recording of, or monitoring of, the patron, the massage therapist, or the massage therapy, without the prior written consent of the patron; and F. Residing in or at the massage establishment by any person including but not limited to the operator, owner, responsible person, or employee of the massage establishment; and
G. Advertising or marketing illegal activity, advertising or marketing sexually s uggestive content related to massage therapy or in the promotion of the massage establishment; and
H. Use or possession of adult-oriented merchandise, including "sex toys" and/or condoms, in any part of a massage establishment; and
I. Any sexual activity at a massage establishment; and
J. No owner, operator, responsible managing employee, manager, permittee, or licensee in charge of or in control of a massage establishment shall permit any person to massage or intentionally touch the specified anatomical areas of another person while performing the services of a massage technician.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.090 Off-premises massage—Prohibited.
It is unlawful for any person to engage in, conduct, carry on, or permit to be engaged in, conducted or carried on, massage, for any form of consideration, in any hotel room, motel room, guesthouse or other place of public accomm odation. This section shall not be construed to prohibit:
A. Maintaining a licensed massage establishment upon the premises of a place of public accommodation; or
B. The holder of a massage practitioner certification issued by the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions Code from giving or administering massages within hospitals, convalescent centers, rest homes, offices, or the private home of a patron. For the purposes of this section, offices and private homes shall not include hotel rooms, motel rooms, or guest houses. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.100 Existing businesses—Regulated.
The provisions of this chapter shall be applicable to all persons and businesses described in this chapter whether the described activities in the chapter were established before or after the effective date of this chapter. Any existing massage technician who performs massage and any massage establishment that employs or utilizes persons to perform massage within the jurisdiction of the city, that operates with a valid and current business license issued by the city and all other necessary approvals issued prior to the effective date of any amended regulations in this chapter or Chapter 10.70, and that operates in compliance with all local, state and federal laws, ordinances, rules and regulations, must be in full compliance with Chapters 10.70 and 10.79 no later than sixty days following the effective date of any new regulations. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.110 Exemptions.
This chapter shall not apply to:
A. Physicians, surgeons, chiropractors, osteopaths, nurses, psychiatrists, psychologists, acupuncturists, physical therapists, family counselors or other health care professionals who are duly licensed to practice their respective professions by the state of California or who are permitted to practice temporarily under the auspices of an associate or establishment duly licensed by the state of California, pursuant to the Business an d Professions Code and persons working directly under the supervision of such licensed persons;
B. A trainer of any duly constituted amateur, semi -professional, or professional athlete or athletic team who administers massage in the normal course of traini ng duties to the team or athlete and trainers in conjunction with a specific athletic event such as an outdoor road or bike race;
D. Barbers, beauticians, cosmetologists, estheticians, and other persons duly licensed to practice any healing art under the laws of the state who administer a massage incidental to a barber or beauty service provided in the normal performance of their profession, and who perform massages only on the neck, face, and/or scalp of the customers. This
exemption shall apply only if massage is provided from a fixed and permanent location of business;
E. Therapeutic massage administered in or under the auspices of any health facility, hospital, nursing homes, sanitariums, or other establishment duly licensed under California statutes i n which the above -described persons practice their respective professions, provided the massages are given only by exempt individuals or persons acting under their supervision;
F. Any bona fide personal fitness training centers, gymnasiums, athletic facilities or health clubs which offers tennis, racquetball, swimming or other sport activities and possesses a sauna or steam room. Massage shall only be administered to members of the athletic club by persons who are exempt under this section.
(Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.120 Inspection by officials.
The city, county, or any investigating official shall have the right to enter the premises of the massage establishment from time to time during regular business hours to conduct reasonable inspections to enforce compliance with this chapter, Chapter 10.70, and with building, fire, electrical, plumbing, and/or state and local health and safety regulations.
No person shall refuse to permit or interfere with a lawful inspection of the massage establishment by city or county investigating officials. (Ord. No. 2019-2454, § 8, 1-22-2019)
10.79.130 Unlawful massage establishment or operation.
Any massage establishment operated, conducted or maintained contrary to the provisions of this chapter, Chapter 10 .70 and/or state and federal laws shall be and the same is hereby declared to be unlawful and a public nuisance. The city attorney may, in addition to, or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings for the abatement, removal, or enjoinment thereof, in any manner provided by law, including as provided in Chapter 10.70.
(Ord. No. 2019-2454, § 8, 1-22-2019)
AGENDA REPORT
Department: City Attorney's Office
Prepared by: Barry J. Schultz, City Attorney
Shelley Chapel, City Clerk
Meeting Date: Tuesday, November 21, 2023
Approved by: Ben Martinez, Interim City Manager
SUBJECT:
Presentation on Transitioning from a General Law City to a Charter City
RECOMMENDATION:
Provide staff direction by choosing one of the following options:
1. Take No Action and Table the Issue.
2. Direct Staff to take Steps to Prepare the City Council to Draft a City Charter.
3. Direct Staff to Initiate the Process for Soliciting Applications for Appointment to a City Charter Advisory Committee.
4. Direct S taff to take the Necessary Steps to Prepare for the Election of a 15-Member Charter Commission.
BOARD/COMMISSION/COMMITTEE PRIOR ACTION:
Not Applicable.
EXPLANATION:
Introduction
California has two types of Cities, General Law Cities and Charter Cities. The City of National City is currently a General Law City. The authority of a General Law City is derived from the general powers granted to it by the State Legislature and from the police powers granted to it by the State Constitution.
The City Council has requested a presentation on transitioning from a General Law City to a Charter City. A “Charter” City's power is not defined or limited by the State's General Laws.
Instead, a Charter City's powers are defined by the City's own charte r subject only to the limitations of the State Constitution (see California. Constitution Article. XI, § 3(a)). This provides a Charter City with more local control over “Municipal Affairs”. The City Charter is, in effect, the City’s Constitution and supersedes all other inconsistent laws with respect to “Municipal Affairs.”
Charter City – Municipal Affairs
The State Constitution does not define the term “Municipal Affairs.” For this reason, the courts have been left with the responsibility of determini ng what constitutes a “Municipal Affair.” Unfortunately, no “bright line” tests have been developed by the courts for making this determination. Instead, the courts have made this determination on a case-by-case basis based upon the particular governmental function at issue.
The following are generally accepted as “Municipal Affairs:” a. Processes and Procedures associated with City Contracts
b. Prevailing Wage Standards for City-Funded Projects (projects using State or Federal Funding are still subject to State Prevailing Wage laws).
c. Municipal E lection matters (though the California Voting Rights Act still applies to Charter Cities)
d. Procedures for Initiative, Referendum, and Recall
e. Procedures for Adopting Ordinances
f. Compensation of City Officers and Employees
g. Financing Public Improvements
h. Making Charitable Gifts of Public Funds for Public Purposes i. Term limits for Council members
j. Land Use and Zoning Decisions
Should the Council wish to cons ider developing a City Charter the above topics could be considered for inclusion in the Charter.
A Charter may be as short, as long, as focused or as comprehe nsive as the City and its voters desire. The C harter, for example, could addres s just a single t opic, such as Prevailing Wages.
While a City Charter may make significant changes to City Governance and Law, it need not do so; most cities that have adopted Charters have largely refrained from significantly changing their form of governance or the applicability of most areas of State Law.
The following items are considered matters of Statewide concern and in these areas, State Legislation preempts a City Charter or Local Legislation:
a. Regulation of Traffic Control
b. Government Claims Act Procedur es for Claims Seeking Money or Damages from the Local Government
c. Ralph M. Brown Act – Open Meeting Laws
d. Meyers-Milias-Brown Act – Local Government Labor Relations e. CEQA – California Environmental Quality Act
f. Public Records Act
g. Licensing of members for a trade or profession
h. Eminent Domain and Annexations
i. Conflict of Interest Laws
It is important to note that the general trend over time has been to narrow the distinction between Charter Cities and General Law Cities. The State Legislature has deemed more matters as matters of Statewide concern. Most recently, the State Legislature has deemed Housing to be a matter of Statewide concern and preempted Local Land Use Control over local housing issues.
This preemption applies to both Charter Cities and General Law Cities. The result is that today there are fewer advantages to Charter Cities as opposed to General Law Cities.
Exhibit A to the Agenda Report is a League of California Cities Comparison of Charter City and General Law City Powers.
Municipal Elections
One of the areas the City Council specifically wanted to consider was changing the current local election system to include primaries. Many Charter Cities provide for Primary Elections, including National City’s neighbors San Diego and Chula Vista and such others as Sacramento and Stockton.
There are other options to consider as referenced in the Special Counsel’s memo provided at the October 17th City Council Meeting, and attached to this report as Exhibit B. These include a Two- Round Runoff Elections System and a Rank Choice Voting Election System. a) Two Round Runoff Election System (aka Run-off Voting or Second Ballot) A Primary Election System and a Two-Round Runoff Election System are similar in that they both contemplate two (2) rounds of voting. However, unlike a Primary, a Two-Round Runoff Election System may result in an election in the first round of voting. In such elections, if no candidate receives over 50 percent of the vote, a second election is held between the top two recipients of votes. This is the system used for county officials.
Charter Cities do have the authority to organize two -round runoff elections per Elections Code Section 15450. Los Angeles, San Diego, San Jose, and Sacramento use this system. b) Plurality is a type of Run -Off Voting when a Candidate receives the plurality of votes not the majority.
c) Ranked Choice Voting Elections System
Ranked Choice Voting, also called “Instant -Runoff Voting,” allows voters to rank candidates in order of preference. In a Ranked-Choice Election, a Candidate must win the majority of the votes to win.
Ranked Choice Voting works as follows; all first choices are counted, if there is one candidate with 50% or more they win just like any other election. If not, the candidate with the fewest votes is eliminated, and voters who picked that candidate as first choice with have their first choice votes count for the second choice. This process continues until a candidate earns a majority and is declared the winner.
San Francisco, Oakland, Berkeley, Albany, Eureka, Palm Desert, and San Leandro use this system.
Charter Preparation Process
There are three different methods to adopt a Charter: 1) City Council drafts the Charter; 2) City Council appoints a Charter Advisory Committee to draft a Charter for Council approval prior to placing on the ballot; 3) City Council calls for the E lection of a 15-Member Charter Commission to draft the Charter; or 4) A Citizens’ Initiative is filed Calling for the E lection of a Charter Commission to draft the Charter1.
Method 1: Council Preparation of Charter
The City Council, after taking public input, would direct Staff to take the steps to prepare the City Council to draft the Charter for placement on the November 2024 ballot.
Method 2: Formation of Charter Advisory Committee
The Council would appoint a Charter Advisory Committee to draft a recommended C harter for consideration by the City Council. Under this approach, the City Council retains the ultimate authority to decide whether to place the draft Charter Measure on the ballot or not.
Formation of a City Council-appointed Charter Advisory Committee would allow for more diverse perspectives to provide input on the preparation of the Charter. Additionally, a Charter Advisory Committee would also create a set of community leaders able to take the lea dership role in advocating support for the Charter with the voters leading up to the election2.
Method 3: Formation of a 15-member Charter Commission.
This option requires that an item be placed on the November 2024 election to determine whether a 15-Member Charter Commission should be formed and if yes, consider electing members of the Charter Commission.
The Commission would act independently of the Council; the Charter it develops is automatically placed on the next available General Election Ballot (earliest could be November 2026).
This process takes significantly longer than the appoin tment of a Charter Advisory C ommittee, since two-elections would be required: the first election would establish the 15-member Charter Commission, if the voters approved the formation of the Commission. The second election would propose the actual Charter. The 15 C andidates receiving the highest number of votes are “elected” from the pool of Candidates. Once formed, the Commission has two-years to complete and submit a proposed Charter to the City’s voters (Council approval is not required to place the Charter on the ballot). The Charter is filed with the City Clerk and placed on the ballot. The Commission is abolished at the end of the two-years (November 2026).
NOTE: Under any of these options, the proposed C harter cannot become effective until it is approved by a majority vote of the City's electors at a Statewide General, P rimary, or other regularly scheduled Municipal Election, and accepted by the Secretary of State.
An existing C harter may be amended or repealed only by a majority vote of the C ity's voting electorate. (California Constitution Article XI, § 3.) A measure to amend or repeal a Charter may
1 This option will not be addressed since it is not subject to Council action. 2 As a City Measure the City and City Council are limited as public funds may not be used to advocate in favor of the passage or the defeat of any ballot measure, including a prop osed charter measure, Informational materials are allowed (copy of the measure and public noticing)
be placed on the ballot by the City Council or upon an initiative petition signed by at least fifteen percent (15%) of the registered voters.
THE LEGAL PROCESS
To place a Charter on the ballot, two (2) Public Hearings must take place following an initial 21 - day notice period where the meeting is noticed in three (3) different locations. a. During the first Public Hearing, a draft of the C harter would need to be considered by the Council.
b. Publish Notice for the second Public Hearing 21 days before the next meeting. c. The Second Public H earing is requi red to take place 30 days after the first hearing.
Following the second Public H earing, the item may be set for final council deliberation after another 21-day waiting period.
Once this process is completed, the City Clerk can forward the measure regarding the proposed Charter to the San Diego County Registrar of Voters Office (ROV).
The County's deadline for submittal of measures for the November 202 4 ballot is likely to be in early August, so if the Council is interested in putting a Charter on the November 2024 ballot and chooses to proceed with the Council or Charter Advisory Committee approach, the timeline would be as follows:
1. City Clerk to Prepare outline of the process and timeline for interviews and appointments.
2. Return to Council with report providing a set of comprehensive instructions, timeline, and bylaws for approval.
3. Once instructions and Bylaws are approved, advertise for applications to serve on a Charter Advisory Committee.
4. Return to Council with the list of Candidates to be interviewed for the Council to approve for the Charter Advisory Committee.
5. Set dates for Public Hearings and Council Meetings to approve the submission of the Charter to voters.
TIMELINE
City Council Creates Charter for Voters (a stri cter timeline would be required for the Charter Advisory Committee to include appointment process) . To place a Charter on the ballot, two (2) Public Hearings must take place following an initial 21 -day notice period where the meeting is noticed in three (3) different locations.
December 5, 2023: The City Council gives direction to Staff to begin preparing for the process of the City Council drafting Charter.
January 16, 2024: City Attorney and City Clerk return with a report providing a set of comprehensive instructions and legal overview of process and timeline.
February 16, 2024: First Public Hearing, a draft of the Charter would need to be considered by the City Council.
March 17, 2024: The Second Public Hearing is required to take place 30 days after the First Hearing.
April 16, 2024: Following the Second Public Hearing, the item may be set for final City Council deliberation after another 21-day waiting period.
May 21, 2024 : City Council final deliberation and finalize Charter for Measu re on ballot.
June 4, 2024: City Council adopts Resolutions Calling For and Consolidating the Election, and Adding Measure to the November Ballot. The City Clerk Prepares Legal Notices, Translations and documents for submittal to the ROV for August Deadline.
Once this process is completed, the City Clerk can forward the measure regarding the proposed Charter to the San Diego County Registrar of Voters (ROV). The County's deadline for the submittal of measures for the November 2024 ballot is the fir st part of August, if the Council is interested in putting a Charter on the November 2024 ballot the Charter must be approved by the City Council at a Regular Meeting no later than June 18, 2024 to give staff time to prepare for the ballot and submittal to the ROV.
November 2024: Charter Measure placed on the ballot for voters.
December 2024: Certify Election. If measure does not pass, certify election results and nothing more is done. If measure passes, the City Clerk prepares to send to the Secretary of State for approval.
January 2025: Training and Implementation begins for City Council, and City Staff regarding changes in new processes , and procedures, and what it means to be a Charter City.
PROS AND CONS DISCUSSION
There are fewer significant differences now between a General Law City and a Charter City, as changes in State L aw have removed some of the areas in which Charter C ities had greater flexibility. However, the benefit of becoming a Charter City is that Charter C ities have supreme authority over “Municipal Affairs,” supreme even over conflicting State Laws.
There are several primary advantages of City Charter status:
• The City, through the City Council, would be able to exerc ise greater local control over Municipal Affairs.
• As to Muni cipal E lections, the City Council could implement an alternative election system, prescribe longer or shorter filing periods, longer or shorter notices of elections, different nominating procedures, different terms of office, and different procedures for voting by mail or other election procedures. However, the courts have held that at least some portion of the California Voting Rights Act applies to Charter Cities. • A Charter C ity's ability to charge different fees or compensation that are provided by State law, coupled with the constitutional authority to regulate the granting of franchises, offers advantages to a Charter City.
• Public W orks contracting procedures on city–financed projects could be made more flexible, as could procedures concerning revenue bond financing. • Financial support could be given to worthwhile organizations or projects affecting the public interest without the restriction of the prohibition against gifts of public funds. • Initiative, referendum, and recall provisions could be different as to the number of signatures required, requirements as to notice, and other procedures, including election procedures.
• Ordinance adoption procedures could be modified, such as reading by title, period of time between first and second readings , and whether two readings should be held or whether one is sufficient.
• A City Charter can override any statutory limitations placed upon the levy of a business tax and provide a city more choice regarding property transfer taxes.
• A Charter C ity also has more flexibility in some planning matters. For examp le, the number of General Plan Amendments per year is not limited.
Although there are no actual legal disadvantages associated with the adoption of a Charter, principal factors should be considered:
Charters’ are not as useful as they used to be with the State adopting so many laws that are of statewide significance, thereby overriding our “Municipal Affair” control The time, effort, professional expense, and public funds required to formulate a Chart er and hold the required election(s).
The transition from many years of operation under “General Law" status to “Charter City" status requires some adjustment for staff and the public. Increased cost for legal resources needed to conduct “Legal Test” if an issue should arise in an undefined area where Charter and General Law may differ. Loss of immediate benefit of new State Legislation on matters of municipal concern unless action is taken by the City Council to adopt it. CHARTER AMENDMENTS RETURN TO THE VOTERS – the timing for the next Regular Election could delay a process or an opportunity.
Transitions to Districts have undermined the need for Primary Elections, which limits the amount of candidates vying for each seat. If only two (2) candidates for a seat, primaries are not helpful.
Adopting a City Charter involves extensive community action, either in support of a measure presented by the people or in response to one proposed by the City Council. This time-consuming process may divide a community even more than District Elections.
On-going costs that will be incurred above a General Law City would incur after the Charter adoption. These included costs associated with the following:
Training staff on new processes and procedures on what it means to be a Charter City. Implementing required procedural changes including adopting ordinances and amending NCMC.
If public contracting is addressed in the Charter and new bid thresholds are established, contract documents and bid packets will need to be updated. Any Financial or accountability procedures will require changes in procedure/policies by the Finance Department.
Any personnel, civil service, or labor relations changes will require changes to existing processes, procedures, and rules and may requir e a meet -and-confer process with recognized employee associations.
Potential Lawsuits arising from exercising Charter powers. All Charter Amendments and repeals, including those mandated by changes in the law, require an election.
FINANCIAL STATEMENT:
Staff Costs and City Resources : The City Attorney and City Clerk do not have the actual cost s associated with developing a Charter M easure at this time. These costs will depend on the procedure chosen and the scope of the proposed charter. A reasonable estimate would be in the range of $75,000 to $100,000.
Cost of Election Process Only : At this time, an estimate has been provided by the Registrar of Voters as a hypothetical example only. The cost will be determined by many considerations such as an election to elect the 15 members of the Charter Commission, the length of the Charter, whether it is added to the ballot by the City Council or by Citizen Initiative. The estimated cost at this time to add an 8-page ballot measure on the November 2024 General Election is $70,000 to $100,000 based on the current registered voter count of 27,438.
RELATED CITY COUNCIL 2020-2025 STRATEGIC PLAN GOAL:
Not Applicable
ENVIRONMENTAL REVIEW:
This is not a project under CEQA and is therefore not subject to environmental review.CCR15378; PRC 21065.
PUBLIC NOTIFICATION:
Agenda Report posted within 72 hours of meeting date and time in accordance with Brown Act.
ORDINANCE:
Not Applicable
EXHIBITS:
Exhibit A – California League of Cities Chart
Exhibit B – Special Counsel Opinion previously provided at the October 17, 2023 City Council Meeting.
Exhibit C – PowerPoint Presentation
GENERAL LAW CITY VS CHARTER CITY
FACTS:
• California Has Two Types Of Cities, General Law Cities and Charter Cities.
• A City that has formally adopted its Charter is known as a “Charter” City.
• A City that abides by the General Laws adopted by the State Legislature is known as a “GeneralLaw”City.
• San Diego County includes 18 Cities, of which:
Charter (9): Carlsbad, Chula Vista, Del Mar, El Cajon,
Oceanside, San Diego, San Marcos, Santee,
Vista
General Law (9): Coronado, Encinitas, Escondido, Imperial Beach, La Mesa, Lemon Grove, National
City, Poway,Solana Beach
• Statewide (As of January 2020, 121 of California’s478 Cities are Charter Cities)
General Law City The authority of a General Law City is derived from the general powers granted to it by the
State Legislature and from the police powers
granted to it by the State Constitution.
Police Power: general authority to make and enforce,
within its geographical limits, all local, police, sanitary and other ordinances and regulations not in conflict
with State law.
Must be reasonably related to legitimate
governmental purpose.
Must be reasonably related to public health and
general welfare.
Charter City
“Charter”City's power is not defined or limited
by the State's General Laws. Instead, a
Charter City's powers are defined by the City's
own Charter subject only to the limitations of
the State Constitution.
The City Charter is, in effect, the City’s
Constitution and supersedes all other
inconsistent laws with respect to “Municipal
Affairs.”
Municipal Affairs – Generally Accepted:
A. Processes and Procedures Associated with City contracts B. Prevailing Wage Standards for City-Funded Projects (Projects using State or Federal Funding are still subject to State Prevailing Wage Laws).
C. Municipal Election Matters (California Voting Rights Act still applies to Charter Cities) D. Procedures for Initiative, Referendum, and Recall
E. Procedures for Adopting Ordinances
F. Compensation of City Officers and Employees
G. Financing Public Improvements
H. Making Charitable Gifts of Public Funds for Public Purposes I. Term Limits for Council Members
J. Land Use and Zoning Decisions
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State Legislation pre-empts a City Charter
A. Regulation of Traffic Control
B. Government Claims Act Procedures for Claims Seeking Money or Damages from the Local Government C. Ralph M. Brown Act – Open Meeting Laws
D. Meyers-Milias-Brown Act – Local Government Labor Relations E. CEQA – California Environmental Quality Act
F. Public Records Act
G. Licensing of Members for a Trade or Profession
H. Eminent Domain and Annexations
I. Conflict of Interest Laws
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DISTRICT ELECTIONS
• November 2022 – Electors of Districts 1 and 3 elected their City Councilmember to represent their district.
• November 2024 – Electors of Districts 2 and 4 will elect their City Council members to represent each district.
Therefore, if the City Council should decide to move forward with a Charter and the possibility of adding a Primary Election, would not be accomplished until at the earliest the Election Year of 2026. The Primary Elections are generally held in March and the Charter may not be adopted in time depending on which process is used, and ultimately still depends on the voters to approve.
Statewide Direct Primary on the first Tuesday after the first Monday in March in even-numbered years. E.G. March 3, 2026, if legislation is not changed.
Considering Primary Elections with Districts
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Elections Methods for Conducting Elections:
Single-Winner: One Candidate is elected
for an office that only one person can serve
on at a time. (e.g. President, Mayor)
Multi-Winner: Elections for at-large City
Council seats. (e.g. three at-large seats up
for election in a given year).
Multi-Winner System Methods:
Block Voting System: A voter can select as many candidates as there are open seats. The candidates with the greatest number of votes are elected. Single Voting System: Each voter can select one candidate regardless of the number of open seats.
Cumulative Voting System: Each voter can cast several votes equal to the number of seats up for election. A voter can allocate all of these votes to a single candidate or distribute them among several candidates.
Elections
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Elections Methods For Tallying Votes To Determine Electoral Outcomes
Plurality System: The Candidate who wins the largest share of votes wins the election. The majority not required.
Majority System: The candidate must win at least 50 percent of the vote.
Single-Winner Ranked-choice Voting System: Voters rank
candidates by preference on their ballots.
Single-Winner Ranked-choice Voting System: Example: Candidates A, B, and C are running for Mayor.
If a Candidate wins more than half the votes they win just like in any other election.
Elections
Candidate A Candidate B Candidate C
90 votes for First Choice 121 votes for Second
Choice
100 votes for Third Choice
Eliminated for
receiving the least
amount of votes. First
Choice votes are then
given to remaining
candidates based on
their other votes.
Add 45 votes from first
choice for a total of 166
votes
Add 45 votes from first
choice for a total of
145 votes
CANDIDATE “B” IS THE WINNER
11 | Page 308 of 319
Charter Preparation
1. Council Preparation of Charter.
2. Formation of Charter Advisory Committee.
3. Formation of a 15 member Charter Commission.
Advisory Committee has the following advantages:
The involvement of representatives of the various segments of the community in drafting the charter would bring more perspectives to the table as to what should and should not be included in the Charter.
Creating a Charter Advisory Committee would also create a set of community leaders able to take the leadership role of providing information to the voters leading up to the election. As a City Measure, the City and City Council are limited as public funds may not be used to advocate in favor of the passage or the defeat of any ballot measure; or November 21, 202312 | Page 309 of 319
Initiative Petition
Citizen Initiative Petition (Est. Cost $50-100K+)
• Signed by at least 15% of the Registered Voters
Currently, 27,438 Registered Voters
15% = 4,116 minimum signatures
When collecting signatures a good rule of thumb is to
collect a minimum plus 10% to account for any
discrepancies in signatures or voter information
provided.
Recent state law has added additional steps in the hearing process to allow adequate opportunity for public input in the process.
The development and public hearing process now requires at a minimum 90 days.
CITY COUNCIL CREATES CHARTER FOR VOTERS:
To place a Charter on the ballot, two Public Hearings must take place following an initial 21-day notice period where the meeting is noticed in three (3) different locations.
December 5, 2023: The City Council gives direction to staff to begin preparing for the process of the City Council drafting Charter.
January 16, 2024: City Attorney and City Clerk return with a report providing a set of comprehensive instructions and legal overview of process and timeline February 16, 2024: First Public Hearing, a draft of the Charter would need to be considered by the City Council.
March 17, 2024: The second Public Hearing is required to take place 30 days after the first hearing.
April 16, 2024: Following the second Public Hearing, the item may be set for final City Council deliberation after another 21-day waiting period.
May 21, 2024: City Council final deliberation and finalize Charter for Measure on ballot June 4, 2024: City Council adopts resolutions calling for and consolidating the election. The Clerk Prepares Legal Notices, Translations and documents for submittal to the ROV for August Deadline.
November, 2024: Charter Measure placed on the ballot for voters December, 2024: Certify Election. If measure does not pass, certify election results and nothing more is done. If measure passes, the City Clerk prepares to send to the Secretary of State for approval.
January, 2025: Training and Implementation begins for City Council, City Staff regarding changes in new processes and procedures and what it means to be a Charter City.
Once this process is completed, the City Clerk can forward the measure regarding the proposed Charter to the San Diego CountyRegistrar of Voters (ROV). The County's deadline for the submittal of measures for the November 2024 ballot is the first part of August, if the Council is interested in putting a Charter on the November 2024 ballot the Charter must be approved by the City Council at a Regular Meeting no later than June 18, 2024 to give staff time to prepare for the ballot and submittal to the ROV. (G.C. 34458) The Legal Process
November 21, 202314 | Page 311 of 319
Direct the City Manager, City Attorney and City Clerk to prepare the necessary steps to move forward with a Charter Advisory Committee:
January 2024: Finalize Charter Advisory Committee requirements and advertise for Applicants.
February 2024: Appoint a Charter Advisory Committee and receive Council input regarding the Charter for the Charter Committee to consider.
March 2024: Charter Committee Drafting of Charter.
April-June 2024: Two (2) Public Hearings before the City Council (Public Hearings must be held at least 30 Days apart and Notice of the Public Hearings must be Posted in Three (3) Public Places within the City at Least 21 Calendar Days before the Date of each Public Hearing). The Second Public Hearing is Required to take place 30 Days after the First Public Hearing.
June 2024: Council Hearing on whether to approve Submission of the Charter to the Voters (Must Take Place at Least 21 Days after the Second Public Hearing).
Charter Advisory Committee
November 21, 202315 | Page 312 of 319
Elected by the voters – The City Council can call for the election or this action can be in the formation of the commission proposed by a citizen initiative. All members must be registered voter of the City (G.C. 34451) December 2023: The City Council can call for the election of a 15-member Charter Commission to be placed on the ballot of a regular general election or special election, which would be November 2024. The deadline for March 2024 is December 8, which is not enough time for the process (95 days and we have 91 days) November 2024: Questions on the ballot: Shall a Charter Commission be elected to propose a new Charter? and secondly, for the candidates for the office of Charter Commissioner. If the first question receives a majority of votes of the qualified voters, thereon at the election, the 15 candidates for office receiving the highest votes shall be organized as a commission. If the first question receives less than a majority there will be no commission.
December 2024: The election is certified and the Commission may begin to meet with staff to begin the process. The Commission has 2 years from the date of election to complete and submit a proposed charter. Once the Commission completes the proposed Charter, it is filed with the City Clerk who will then place it on the next established statewide general election provided there are at least 95 days before the election.
November 2026: The last Election the Charter could be voted on as proposed by the Charter Commission, and Charter is abolished after two-years.
If any vacancy arises in a Charter Commission, the vacancy shall be filled by an appointment of the Mayor. (G.C. 34452) 15-Member Charter Commission
November 21, 202316 | Page 313 of 319
What is it that we want to fix
by becoming a Charter City?
November 21, 202317 | Page 314 of 319
ADVANTAGES
ADVANTAGES OF CITY CHARTER STATUS:
• Exercise greater local control over the following “Municipal Affairs”:
• Municipal Elections
However, the courts have held that at least some portion of the California Voting Rights Act applies to charter cities.
• Fees or Compensation
• Public Works Contracting
• Support Organizations or Projects with Public Funds
• Ordinance adoption procedures
• Override any statutory limitations placed upon the levy of a business tax • Flexibility in some Planning matters, such as the number of General Plan Amendments per year.
November 21, 202318 | Page 315 of 319
DISADVANTAGES
Although there are no actual legal disadvantages associated with the adoption of a Charter, principal factors should be considered:
• Charters’are not as useful as they used to be with the State adopting so many laws that are of statewide significance, thereby overriding our “municipalaffair”control.
• The time, effort, professional expense, and public funds required to formulate a Charter and hold the required election(s). • The transition from many years of operation under “GeneralLaw" status to “CharterCity" status requires some adjustment for staff and the public.
• Increased cost for legal resources needed to conduct “Legal Test”if an issue should arise in an undefined area where Charter and General Law may differ.
• Loss of immediate benefit of new State Legislation on matters of municipal concern unless action is taken by the City Council to adopt it. CHARTER AMENDMENTS RETURN TO THE VOTERS – the timing for the next Regular Election could delay a process or an opportunity.
• Transitions to Districts have undermined the need for Primary Elections, which limits the amount of candidates vying for each seat. If only 2 candidates for a seat, primaries aren’thelpful.
November 21, 202319 | Page 316 of 319
Once A Charter Is Adopted – Future
Costs Are Incurred And Ongoing
Adopting a City Charter involves extensive community action, either in support of a measure presented by the people or in response to one proposed by the City Council. This time-consuming process may divide a community even more than district elections.
On-going costs that will be incurred above a General Law City would incur after the Charter adoption. These included costs associated with the following:
Training staff on new processes and procedures on what it means to be a Charter City. Implementing required procedural changes including adopting ordinances and amending NCMC. If public contracting is addressed in the charter and new bid thresholds are established, contract documents and bid packets will need to be updated.
Any Financial or accountability procedures will require changes in procedure/policies by the Finance Department. Any personnel, civil service, or labor relations changes will require changes to existing processes, procedures, and rules and may require a meet-and-confer process with recognized employee associations. Lawsuits arising from exercising Charter powers.
All Charter Amendments and repeals, including those mandated by changes in the law, require an election.
November 21, 202320 | Page 317 of 319
Ongoing
Challenges
Some areas that seem to consistently withstand a
challenge:
o Municipal Organization: The form of government and
sub-government.
o Spending Local Funds: How a Charter City decides
to use its own tax dollars.
o Elections: Timing, Qualifications, Balloting, etc.
o Salary and Benefits (including Retirement): City
Council, other officers and employees
QUESTIONS?
November 21, 202322 | Page 319 of 319