City Council Meeting: April 22, 2008

Agenda Item: 7-D

To: Mayor and City Council

From: Marsha Jones Moutrie, City Attorney

Subject: Proposed Ordinance Amending the City’s Massage Regulations

Recommended Action

Legal staff, the Police Department and the Finance Department recommend that the City Council introduce for first reading the attached ordinance amending clarifying and updating the City’s massage regulations to better conform them to community needs and current case law.

Executive Summary

The attached, proposed ordinance would amend Chapter 6.104 of the Santa Monica Municipal Code, which contains the City’s massage regulations. Three realities drive staff’s proposal: changes in case law since Council last amended the massage regulations, a dramatic increase in the number of illicit massage parlors in the City and in other businesses which act as “fronts” for prostitution and other illegal activities, and attendant complaints for City residents who live near these illegal businesses. The proposed ordinance is modeled after ordinances adopted by other cities in recent years. It would clarify some existing provisions of local law, strengthen others to help the Police Department and the Finance Department combat illegal business, and also protect the constitutional rights of business owners, operators and workers.

Discussion

Background

Information on Trafficking

In recent years, California has experienced a significant increase in the use of massage and other health related businesses as “fronts” for prostitution and related illegal activities. Law enforcement authorities attribute this increase to global crime syndicates which are smuggling young women from Asia into California and from Latin American into Texas and Florida. The Department of Justice estimates that, each year, about 20,000 victims are trafficked into the United States, essentially as “slaves”. Most end up in California cities. This ugly reality belies the conception of prostitution as a victimless crime.

In Southern California, most victims of trafficking are smuggled into the United States from Korea. Federal agents report that these victims number in the hundreds each year and that the typical fee for smuggling a woman from Korea to Southern California is as high as $15,000. Once here, each woman is required to work off the fee in a brothel.

In 2000, the federal Trafficking Victims Protection Act was adopted to combat sex trafficking and slavery. It authorizes maximum sentences of 20 years to life for traffickers. In 2004, the law was amended to provide greater protection for victims. In 2005, federal authorities in Southern California organized a multi-agency task force which works with local police to combat trafficking. U.S. Attorney Debra Wong Yang commented in a press release: “Human trafficking crimes… victimize the vulnerable people in our society. With the formation earlier this year of the Los Angeles Metropolitan Area Task Force on Human Trafficking, we are honing our tactics for identifying and rescuing trafficking victims, as well as prosecuting those responsible for human trafficking.”

A year later, the federal and local task forces made hundreds of prostitution arrests in massage parlors, chiropractic offices, aromatherapy and acupuncture businesses in the Los Angeles area. Santa Monica police worked as members of this task force and made arrests in Santa Monica.

On the state level, in 2005, the state legislature adopted AB 665, amending Government Code Section 51032. As amended, the provision authorizes cities to adopt ordinances governing the licensing of massage business and requiring such local ordinances to mandate license denial as to massage personnel/owners/operators who are required to register as sex offenders. Because cities can only fulfill this requirement by fingerprinting massage workers, the practical result of this law is that cities with massage ordinances must require fingerprinting of those involved in massage businesses.

Illicit Massage Operations and Enforcement Efforts in Santa Monica

In Santa Monica, there are approximately 64 massage and accessory massage businesses. This is an exceptionally high concentration, given that the City’s size is only about 8 square miles. Moreover, the number of businesses is increasing. Thirty three new businesses opened in 2006 and 2007, as compared to 6 in 2000 and 2001. There are about 573 licensed massage technicians in the City. About 88% are treated as “exempt” under current law and therefore have not been fingerprinted. Santa Monica is the only City in the Los Angeles area, and in the state, which does not require all massage technicians to be fingerprinted.

A significant portion of the businesses and technicians in Santa Monica operate legitimately and provide valued services. However, a large number do not. Police and prosecutors estimate that over 25% of the businesses engage in unlawful operations, notably prostitution. We have continued to receive complaints from City residents about illegitimate massage operations. Many of the complaints come from community members living near Lincoln Boulevard.

In the last few years, the SMPD and City Attorney’s office have devoted considerable resources to combating trafficking, prostitution, and other illegal activities conducted at businesses purporting to be massage parlors. Police personnel have worked with the multi-agency task force created in Los Angeles. They have also worked with members of the Criminal Division of the City Attorney’s office and the head of the Finance Department’s Revenue Division to identify illegal operations and curtail them. This effort has involved various criminal and civil approaches. About ten businesses have been closed as a result of this work. Five closed voluntarily. Another five were forced to close. Four of these were brothels licensed for massage. Despite these gains, the work remains very challenging. When individual prostitutes, posing as massage technicians are arrested; they are simply replaced. When business owners are prosecuted or lose their permits, the businesses are transferred.

One relatively successful approach has been the pursuit of landlords who rent commercial property to illegal businesses. The City has used the state’s Red Light Abatement Law, Penal Code Section 11225 and following, to combat illicit massage operations by informing property owners of their potential exposure to severe civil and criminal penalties resulting from the illegal use of their property. Expanded use of this remedy is contemplated.

The current massage ordinance was adopted in 1986 as Chapter 6.104 of the Municipal Code and was amended in 1995. In adopting the ordinance, the City Council attempted to both address massage activities detrimental to the public health and welfare and, at the same time, to protect legitimate massage businesses. However, the existing ordinance needs to be updated to reflect developments in applicable law and changing realities.

In drafting the attached, proposed ordinance, City reviewed ordinances adopted by other cities in the last decade. The laws from Newport Beach and Anaheim were selected as the best examples. Like Santa Monica, both of those cities are visitor-serving cities and have many illicit massage businesses. Their ordinances were reviewed by members of the Criminal Division of the City Attorney’s Office and Revenue Division staff. City Attorney’s Office staff also met with representatives of the Santa Monica Police Department to understand enforcement realities and challenges. The City team also reviewed complaints from community members and heeded their request that enforcement personnel have the benefit of the best possible legal tools for combating prostitution masquerading as massage, acupressure or something else.

Summary of the Proposed Ordinance

The attached, proposed ordinance would both amend and clarify existing law in various respects. Most important, it would require finger printing of all persons seeking permits under the ordinance. At present, Santa Monica is the only city in Southern California with a massage permitting system that does not require fingerprinting – a fact which may partially explain the concentration of such businesses within the City. Also, the ordinance would require all massage technicians to take and pass the County’s proficiency examination to ensure competence. And, the ordinance would establish that massage businesses are, for zoning purposes, permitted in the same zones as general office. For convenience sake, the other proposed changes are grouped by category in this report.

Definitions – New definitions are added to the terms “responsible Employee” and “responsible Managing Officer” The addition of these definitions will facilitate holding accountable those individuals who actually operate and profit by illicit massage businesses. This will minimize the likelihood of operators simply continuing in business when workers are arrested.

Applications and Permit Requirements – The proposed ordinance would require that all applications for licenses be accompanied by a copy of the lease for the proposed premises and a notarized acknowledgement from the owner that a massage establishment will be located on the property. Also, the proposed law would authorize denial of an application if an applicant has bas been found to have violated the Red Light Abatement Law within the past five years, and the law would provide that the City may commence an abatement action if the massage establishment operates as a nuisance.

Additionally application requirements and permit conditions would be strengthened in a variety of ways. These include establishing proof of liability insurance, requiring technicians to pass the Los Angeles County Department of Health’s technician examination, requiring an operator or responsible employee on the premises at all times, requiring display of operators’ and technicians’ permits in the lobby of businesses, requiring that technicians carry photographic identification cards when working and show them to City representatives upon request, and prohibiting transfer of permits.

Constitutional Protections - Several changes are proposed to ensure that Due Process and other constitutional rights of massage operators and workers are respected. The proposed ordinance would require City action on a completed application within 90 days. Additionally, current law requires extensive disclosure of prior convictions. The proposed law would narrow the list of prior convictions which must be disclosed on applications. Five year disclosure requirement would apply to specific enumerated and related offenses, whereas a three year disclosure requirement would apply to non-enumerated acts which both involve moral turpitude and bear a substantial relationship to the practice of massage. This change will conform the ordinance to requirements of current case law.

Operating Requirements - A number of new operational requirements would apply. Most for these are taken from model ordinances adopted and used by other cities. Massage businesses would be required to post a list of all available services and would be prohibited from providing other services. Standard lighting of at least 40 watts would be required in each room, with strobe and colored lighting prohibited. The Police Chief would be authorized to require that establishments post notification to patrons that the premises are subject to inspection by City authorities.

Exemption for Professionals –The current law exempts state licensed professionals; but experience has shown that the exemption is overbroad. Accordingly, staff recommends a more limited exemption which would apply to physicians, surgeons, osteopaths, physical therapists and registered nurses working under a physicians’ direction.

Penalties - Finally, a specific penalty provision would be added making a violation a misdemeanor and reserving the City’s right to proceed by other means, including nuisance abatement.

Financial Impacts

The Revenue Division has determined that adoption of the proposed ordinance would not, in itself, increase costs. Costs of administration would vary depending upon enforcement efforts.

Prepared by:

Marsha Jones Moutrie, City Attorney

Attached: Proposed Ordinance

Approved:	Forwarded to Council:
Marsha Jones Moutrie City Attorney	P. Lamont Ewell City Manager