Massage Ordinance Memo - July 20211
Daniel Fama
From:Rob Eastwood
Sent:Tuesday, July 6, 2021 5:44 PM
To:Daniel Fama; Ian White; William Seligmann
Cc:Celia Cruz Deniz; Ana Spear
Subject:RE: Massage Establishment Follow-Up
Good summary and also my understanding from our conversation, thanks for memorializing this Daniel
Rob
Rob Eastwood, AICP
Community Development Director
City of Campbell
70 N. First Street | Campbell, CA 95008
www.campbellca.gov | 408.866.2141
robe@campbellca.gov
From: Daniel Fama <danielf@campbellca.gov>
Sent: Tuesday, July 6, 2021 4:47 PM
To: Ian White <iwhite@campbellca.gov>; Rob Eastwood <RobE@campbellca.gov>; William Seligmann
<BillS@campbellca.gov>
Cc: Celia Cruz Deniz <CeliaD@campbellca.gov>; Ana Spear <ASpear@campbellca.gov>
Subject: RE: Massage Establishment Follow‐Up
All – To memorialize our conversation (and looping in Celia in Finance):
Planning will not accept any Conditional Use Permit applications to allow for any new massage
establishments or “health spas” since we far exceed the citywide limit of 12 establishments.
PD will not accept any new Massage Establishment Permit applications for the same reason.
Self‐employed therapists working within existing establishments will be allowed to obtain business
licenses as “employees” (and not be considered “establishments”) provided that they are registered as
employees under the establishment proprietor’s Massage Establishment Permit.
PD will contact the current Massage Establishment Permit applicants to explain that no new permits
may be issued.
Any future code updates will be performed with the intention of closing loopholes and addressing
internal inconsistencies, not to allow for additional establishments.
Thanks for everyone’s time!
Daniel
To: City Attorney Seligmann, Director Eastwood,
and Capitan White
Date: July 6, 2021
From: Daniel Fama, Senior Planner
Subject: Massage Ordinance Concerns
• Issue 1: When a self-employed massage therapist who is operating as an independent
contractor should be considered an "employee" rather than an "establishment" is ambiguous.
The CMC clearly allows for an understanding that a therapist need not be a literal employee
to avoid being classified as an "establishment" by virtue of the definition of "employee"
(CMC Sec. 5.48.020(c)) using the term "independent contractor". However, no
distinguishing factors are provided.
"Employee" means anyone working at a massage establishment, including but not limited
to owners, operators, employees and independent contractors;
.
Per the City Attorney, a determination is dependent on the relationship between the parties.
Specifically, if there is an agreement/contract between an establishment proprietor and a
therapist that controls how the therapist performs their practice or requires sharing of income,
the therapist should be considered an "employee." If the therapist is simply paying rent or
leasing a room without any other relationship with the establishment proprietor, the therapist
should be considered an "establishment".
Unfortunately, given the historic issues with the massage program, there are likely numerous
therapists operating as "employees" who are more appropriately classified as
"establishments" through no fault of their own. Additionally, since the City does not ask for
contracts/agreements between establishment proprietors and therapists it is not clear how to
classify therapists on a moving forward basis.
Given that there is a Citywide limit of 12 establishments—which we already exceed—the
City needs to work with these self-employed therapists to ensure that they can be classified
as "employees". We can provide guidance similar to the above and ask for copies of
agreements/leases to ensure that all self-employed therapists not currently in possession of an
establishment permit can remain in business as "employees".
Additionally, we should update Chapter 5.48 to clarify the distinction between "employees"
and "establishments".
Issue 2: CMC Sec. 21.37.270 indicates that two establishments may be allowed per
"quadrant," suggesting that new establishments may be allowed in "quadrants" that have
fewer than two establishments. This understanding is reflected in an internal "cheat sheet"
that shows "available" spots in the City:
City of Campbell
MEMORANDUM
Planning Division
Staff Memorandum – July 6, 2021 Page 2
Massage Ordinance Concerns
However, CMC 5.48.264(a) clearly indicates a maximum of 12 establishments may exist,
precluding any new establishments from being approved. In other words, we have a de-facto
moratorium on new massage establishments. This should be clearly reflected in the Zoning
Code.
5.48.264 - Number of Massage Establishments.
(a) Except as provided in subsection (b) of this section, the maximum number of massage
establishments allowed in the City shall be twelve.
Issue 3: Similarly, the Zoning Code allows creation of a "Spa Services/Health Spa" use
where massage is allowed in an ancillary capacity in conjunction with other personal
services. This use is defined separately and is intended to be distinct from massage
establishments. However, under Chapter 5.38 a "Spa Services/Health Spa" is still considered
an establishment, subject to the Citywide limit. As such, this use should be removed since an
establishment permit cannot be granted or made exempt from the Citywide limit.
"Spa Services/Health Spa" means an establishment that provides a combination of hair, nail,
and/or skin care; waxing; facials; massage; and other similar services to customers for financial
compensation and may include a sauna, whirlpool, and other similar amenities for the incidental
use of patrons. Spa Services / Health Spa shall not mean a beauty shop, nail shop, barber
shop, or massage establishment where the active primary use of the establishment does not
encompass a full range of services identified in the preceding sentence, but is focused on only
one or two of the uses listed in this sentence.
"Massage establishment" means an establishment having a fixed place of business where any
person, firm, association or corporation practices or otherwise permits massage for
compensation. For the purposes of this chapter, the term "massage establishment" includes
establishments that offer services such as relaxation, hot tub, towel wraps, baths, health
treatments, tanning, or any service where the essential nature of the interaction between the
employee and the customer involves a massage;
Issue 4: CMC Sec. 5.48.264 precludes an existing massage establishment from renewing a
permit if it "ceased operations". In such a circumstance, a new establishment permit would
be required. However, such a request would be denied because of the Citywide limit. This
approach conflicts with the non-conforming provisions in CMC Sec. 21.36.270.E.2 that
provides a 12-month discontinuation period. Chapter 5.48 and Section 21.36.270.E.2 need to
be reconciled to address this discrepancy.
Staff Memorandum – July 6, 2021 Page 3
Massage Ordinance Concerns
5.48.264 - Number of Massage Establishments.
(a) Except as provided in subsection (b) of this section, the maximum number of massage
establishments allowed in the City shall be twelve.
(b) Notwithstanding subsection (a) of this section, a massage establishment that is lawfully
operating in the City at the time that the ordinance adopting this section becomes effective
shall be able to renew its establishment permit, so long as the massage establishment:
(1) Continues to comply with the requirement of this chapter and applicable state and
federal laws;
(2) Has not had its establishment permit revoked; or
(3) Has not otherwise ceased operations.
E. Non-conforming Massage Establishments.
1. Any use of real property lawfully existing on the effective date of this section, which does
not conform to the provisions of this Section, but which was established, operated, and
maintained in compliance with all previous regulations, shall be regarded as a
nonconforming use and may continue at its existing location in compliance with the
regulations of Section 21.58.040.
2. Discontinued Use. A nonconforming use that is abandoned, discontinued, or has ceased
operations for a continuous period of at least twelve months shall not be re-established on
the site and further use of the structure or parcel shall comply with all of the regulations of
the applicable zoning district and all other applicable provisions of this Zoning Code.
Evidence of abandonment shall include, but is not limited to, the actual removal of
equipment, furniture, machinery, structures, or other components of the nonconforming use,
the turning-off of the previously connected utilities, or where there are no business
receipts/records available to provide evidence that the use is in continual operation;
Issue 5: Lastly, Chapter 5.48 should clearly indicate that only one "establishment" may be
created per property, to be consistent with CMC Sec. 21.37.270.C.2, which requires all
establishments to be located 300-feet away from another establishment.
C. Overconcentration / Location Requirements.
1. No massage establishment shall be located in any zone in the city other than the C-2
(General Commercial) and P-O (Professional Office) zoning districts.
2. A massage establishment use shall not be located within three hundred feet of another
existing massage establishment use, as measured from the edge of the property line of
each property.