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Article updated to clartify the views of applicant Pick Axe Holdings and not the opinion of ECM.
December 6, 2023 (LEMON GROVE)—
Lemon Grove is home to 12 massage facilities and is making new policies to cut the number of massage establishments down to eight, require background checks for all owners and managers and display of their therapist certificate issued by the California Massage Therapy Council (CAMTC). The ordinance will also regulate what hours they can operate and set other rules.
Massages in settings of the medical profession or settings like gyms and salon and spas would be excluded from the new ordinance.
On November 21, Lemon Grove City Council held a public hearing to discuss suggested changes to the current city ordinance. Community Development Manager Michael Fellows gave a brief background explaining the outdated verbiage of the existing ordinances. Fellows stated that prior to 2009, Lemon Grove classified massage as adult entertainment as allowed by the state. In 2009, however, The Message Therapy Act (SB731) made that no longer an acceptable classification and ruled that massage would be considered professional or personal services.
In 2014 the CAMTC underwent its first sunset review and discovered that SB 731 effectively eliminated local jurisdictions’ ability to regulate these businesses at all. Local jurisdictions reported that illegitimate businesses found ways to work within the confines of SB 731.
As a result, AD 1147 was drafted, allowing local governments to impose reasonable conditions on the operation of massage establishments and shifting regulatory oversight of businesses back to cities and counties to regulate zoning and land use for massage establishments and businesses. AD 1147 established restrictions on a local government’s ability to regulate certified massage professionals within the Government Code (GC), including prohibiting local governments from imposing requirements that certified massage professionals take any test, medical examination, background check, have any additional education requirements or impose any requirements that certified massage professionals obtain any other license, permit, certificate or authorization to provide massage for compensation, excluding requirements in excess of what is already considered unprofessional conduct by the CAMTC.
In 2019 the State of California found, “Since the profession of massage therapy has often been unfairly linked to prostitution and human trafficking, it was argued that this regulatory scheme was enacted, in part, to deal with illicit massage businesses. In doing so, massage therapy businesses were subject to local ordinances that inappropriately and oppressively regulated them as adult entertainment, including restrictive zoning, excessive fees, venereal disease tests, required showers and separate restrooms, and prohibited home visits.”
Massage therapy is one of the largest growing self-care industries and has many physical and mental health benefits such as improved circulation, decreased joint inflammation, pain relief, reduction of anxiety and depression, just to name a few.
In the Staff Report the city explains that Draft Ordinance 464 amends the Lemon Grove Municipal Code to update regulations specific to the operation of massage establishments in the city while complying with state law and to “operate at the highest standards.” This ordinance would also restrict the number of establishments and restrict the location of massage establishments to 1,000 feet apart as well as “remove all references to massage businesses being classified as an adult entertainment use to comply with state law.”
During the council meeting, Fellows explained that despite the state requiring cities to stop classifying massage as adult entertainment, “currently the Lemon Grove Municipal Code still classifies massage as an adult entertainment use.” Fellows told Council this “classification is unenforceable.” Fellows gave further insight into how the old ordinance was written with “a 1000 foot distance requirement from other adult entertainment uses, 500 feet from area zoned for residential use and 600 feet from other sensitive uses including churches, schools, public playgrounds, and public recreation as mentioned are also non enforceable.”
Fellows suggested, “Due to the lack of regulations in the code and an influx that staff saw in business license applications for massage establishments, staff approached the Planning Commission to see if they would be interested in creating or directing staff to develop and draft regulations related to massage establishments.” Fellows confirmed that the “Planning Commission did express interest in working on an ordinance for massage establishments” and held three Planning Commission workshops where staff worked with the commission to develop the draft presented to Council.
The new ordinance would finally remove the “adult Entertainment” label to comply with state laws as well as add verbiage that was established by the CAMTC in regard to posting CAMTC licenses for all massage therapists and background checks for managers and owners. The zoning would be in the General Commercial Zones only and require a Minor Use Permit (MUP) with early separation findings required for the 1,000 feet distance requirements. The new regulations would also require that windows are not to be obstructed and that the operating hours be limited to 9 a.m.to 9 p.m.
Fellows also stated that staff recommend allowing businesses a 60-day period for business modifications from date of the ordinance and clarified that “all of the existing establishments would become legal, non-conforming and essentially be allowed to continue to operate until that use is abated.” Fellows did state that a new owner could assume the original permit when establishments are sold in the future.
Resident Brenda Hammond stated during public comments, “I think it’s a good idea to have those establishments here. A lot of people like to have massages instead of medication for pain relief. Also as you know, I’ve been passing out fliers for the city bonfire, and I’ve been into every single business in the city and I’ve been in some of these massage establishments.” She added that she has seen no “hanky panky going on. They have all been clean.”
During questions from Council, Councilmember Alysson Snow asked staff why they went with requiring a minor use permit (MUP) process rather than a conditional use permit (CUP).
Fellows responded, “We gave the planning commission three different proposals. We proposed the option of just making it a business license process, where it’s if a massage establishment meets the code then its approvable. Then we presented two discretionary options. One was the MUP and one that was a CUP. Of the two options the MUP is the less intensive. Discretionary action tends to be the less expensive. Our costs are based on the amount of time spent processing an application and of the two, the MUP tends to take less time than the CUP.” One difference Fellows mentioned that an MUP is a Community Development Manager decision instead of requiring a public hearing in front of the Planning Commission.”
Councilmember Liana LeBaron stated, “I noticed with this that the intention is wanting to limit the number of massage parlors there are in the city; that is the short and sweet of this. Now we are suggesting that we codify these changes so that we can see that vision of less massage parlors” She noted, “I think its interesting that we’re requiring the MUP and the 1,000 foot distance for massage parlors, yet in recent meetings there seemed to be this ambiguity or wanting to skew the rules from having to require MUP’s for medical marijuana dispensaries. Those are multi- million-dollar businesses where a lot of issues can come from being too close together. So, I think it’s curious that massage parlors we’re requiring, and im not saying I don’t agree, yet I find it odd that for this business we are requiring an MUP and for other businesses and for dispensaries we seem to be changing rules as we go.”
Staff did not respond to LeBaron, who was referencing a recent dispensary application from Christopher Williams of Pick Axe Holdings that back in May was not granted an extension on an MUP, while a neighboring business was allowed to skip the MUP process and early separation findings of 1000 feet from another dispensary required of Pick Axe Holdings according to Williams, even though Williams was still eligible for an appeal. This essentially blocked Williams of Pick Axe Holding from being able to proceed and giving the neighboring business an unfair advantage according to Williams.
City Manager Lydia Romero clarified, “This agenda item was sent down to every single business so we get them to understand what is coming forward, but we won’t be enforcing anything even though, say, the deadline is six months or 60 days after the ordinance implementation. We’re going to have a longer period because we are about education and compliance and not about enforcement. So, we are going to give everyone ample opportunity to work city staff and to work with the enforcement officer and hold their hand all the way.”
Mayor Raquel Vasquez shared, “I think it’s important that there is a timeline established for notification, implementation and enforcement. The perfect time to ensure that the 12 businesses that exist here in the city receive some type of notification is when they apply for their business license. If we can have something available for those businesses and we start the whole application process for business licenses, I think that would be of value.”
Romero explained to the Mayor that there would not be adequate time “with the business license and inserting it there. Staff is in the midst of preparing the renewal of business licenses for all 400 businesses in town.”
Romero did suggest that staff could possibly pull aside those 12 businesses licenses after the December 5th meeting when the ordinance would have a second reading for final approval and hold those renewals back in order to allow those businesses to be informed.
Council earlier voted 4-0, with Councilmember Jennifer Mendoza absent, to introduce the ordinance and move forward to a second reading on December 5th, when the full Council voted 5-0 to approve the ordinance into the city code.
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