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HomeMy WebLinkAbout07/20/2009 B A K E R S F I E L D Sue Benham, Chair Rhonda iley, Assistant t e City Manager/ P.I.O. David Couch For: Alan Tandy, City Manager Jacquie Sullivan AGENDA SUMMARY REPORT Regular Meeting of the LEGISLATIVE AND LITIGATION COMMITTEE MEETING Monday, July 20, 2009 - 12:00 p.m. City Hall North First Floor- Conference Room A 1600 Truxtun Avenue, Bakersfield, CA 93301 The meeting was called to order at 12:16:50PM. 1 . ROLL CALL Present: Councilmember Sue Benham; Chair Councilmember David Couch Councilmember Jacquie Sullivan Staff present: Alan Tandy, City Manager Ginny Gennaro, City Attorney Rhonda Smiley, Asst. to the City Manager Steven Teglia, Administrative Analyst Christine Im, Associate Attorney Justin Crumley, Associate Attorney Dianne Hoover, Recreation & Parks Director Bethewel Wilson, Associate Attorney Lyle Martin, Asst. Police Chief Kevin Stokes, Police Captain Scott Tunnicliffe, Police Lieutenant Others present: Knute Berry, Massage School, Roberta Rolnick, CAMTC Gretchen Wenner, Bakersfield Californian 2. ADOPT MAY 19, 2008 AGENDA SUMMARY REPORT Adopted as submitted. 3. PUBLIC STATEMENTS None AGENDA SUMMARY REPORT LEGISLATIVE AND LITIGATION COMMITTEE Monday, July 20, 2009 Page 2 of 4 4. NEW BUSINESS a. Discussion regarding Second Hand Smoke Ordinance - Gennaro In response to comments made at the June 10, 2009 City Council meeting regarding local second-hand smoke ordinances, City Attorney Ginny Gennaro provided a brief overview of related State law, Kern County Code and Bakersfield Municipal Code as it pertains to public recreation buildings and outdoor dining. State law prohibits smoking in public parks within 25 feet of playgrounds and smoking within public buildings. Although these provisions are not part of the City code, the City is able to enforce State law. There are no state laws regulating smoking in outdoor dining areas. However, local municipalities may regulate this activity if they so choose. Ms. Gennaro concluded that if the Committee and Council are inclined to change the Municipal Code, staff would bring back an ordinance to that effect. Committee Chair Sue Benham commented that, absent any request from restaurant owners or businesses involved, she is not inclined to move forward on any change to the Municipal Code and thanked staff for their efforts. No action was required by the Committee. b. Discussion regarding Massage Ordinance - Gennaro City Attorney Ginny Gennaro explained that the City currently has a very thorough code to govern massage permits and regulations. In September 2008, the State Legislature passed SB 731 which created the California Massage Therapy Council (CAMTC). This independent, non-profit agency grants certifications to massage practitioners from approved schools. Through the CAMTC, applicants fulfill the licensing requirements of every city in the State of California and can practice uniformly. Although certification through CAMTC is voluntary, State law will preempt local regulations for certified individuals. MS. Gennaro added that this is a clear benefit to the City's Police Department because the extensive background checks will no longer be required. After reviewing SB 731 with the Police Department, the City Attorney's Office proposes the following possible changes to the City's Municipal Code: Option l : The City would continue to keep its individual and establishment permitting process for those who do not choose voluntary State certification. However, the downside to this option is an increased burden on the Police Department to conduct background checks and arrests for illegal activity. It will also put the burden on the City to regulate health and safety requirements, zoning, business licenses and inspections. Option 2: The City can make State certification mandatory and shift the burden of background investigations and resources to the State. Under this AGENDA SUMMARY REPORT LEGISLATIVE AND LITIGATION COMMITTEE Monday, July 20, 2009 Page 3 of 4 option, individual practitioners would be required to have State certifications from the time of enactment and thereafter. Individual City permits previously granted would expire after their natural period of two years, or extended with a grace period of two years, or extended with a grace period determined by the Council to allow for successful transitions to State certification. The City could forego the establishment permit entirely, limiting the City's regulation to the extent of State law. If the City requires establishment permits, they can only be required from non-State certified individuals or employed massage practitioners. Ms. Gennaro added that in addition to those options, the Committee could leave the Municipal Code as is, come back in six months to see how many constituents take the opportunity to go through CAMTC, and evaluate the State program to see what direction to take in modifying the current code. Lieutenant Scott Tunnicliffe stated that from the Police Department's perspective, State licensing would be more advantageous to the City and practitioners because it meets the City's current ordinances and guidelines and provides a one-stop-shop for practitioners without duplicating efforts. Committee Chair Sue Benham asked what PD's position would be regarding the Attorney's recommendation of deferring action for six months. Lieutenant Tunnicliffe responded that they would not be opposed to this recommendation, but would encourage the City to incorporate a grace period before practitioners have to convert to the new license under the State. Massage school owner Knute Berry raised concerns that the strict requirements of the State would prevent his students from obtaining licenses, because his school is not approved by the Post Secondary Department of Education. Mr. Berry added that the only way he can operate his school is if the City's current massage ordinance does not change. Roberta Rolnick of CAMTC thanked the Committee for their consideration and advised that the intention of the CAMTC is to be rigorous with their stance and, at the same time, be all inclusive. Ms. Rolnick added that a solution to make the process all inclusive for schools such as Mr. Berry's will be voted on at their July 29th meeting. Notification and applications will be made available through the CAMTC website and through mailings beginning August 1 , 2009. Certification should begin on September 1, 2009. Ms. Rolnick commented that all three options recommended by Ms. Gennaro are workable and that the CAMTC wants to support the City's efforts to be in compliance with SB 731 . Committee member David Couch asked if SB 731 addressed the issue of in-home massage. City Attorney Gennaro stated that it will allow for it by default, but it is an unclear area the Committee may wish to address when the ordinance issue is re-visited. However, with the current penal code, there are tools the Police Department can use to combat the aspect of criminal activity related to in-home message. Committee Chair Sue Benham requested that the City Attorneys Office and the Police Department work together over the next couple of months and come back to the Committee in September. At that time, the City will know if the concerns of Mr. Berry are ameliorated by the CAMTC decision on July 29th, and if the program is working. Committee Chair Benham also asked that staff report back to the AGENDA SUMMARY REPORT LEGISLATIVE AND LITIGATION COMMITTEE Monday, July 20, 2009 Page 4 of 4 Committee and advise if the City should repeal the current ordinance with a grace period. c. Discussion regarding Loud Parties Ordinance - Gennaro At the request of Councilmember Ken Weir, staff reviewed the current ordinance regarding fines to tenants or owners due to loud events at apartment complexes. City Attorney Ginny Gennaro advised that the current ordinance is structured to allow the Police Department maximum flexibility. It is at the discretion of the Police Department when they are responding to a multiunit apartment complex to cite either the individual tenant or the owner of the complex. d. Designation of Voting Delegate for League Annual Conference - Smiley Assistant to the City Manager Rhonda Smiley presented staff's recommendation to designate a voting delegate for the League of California Cities Annual Conference (LOCC). Given the City's current economic situation and the restrictions on employee travel, staff will not be attending the annual conference this year. However, Councilmember Jacquie Sullivan will be attending. Staff is recommending that the Committee designate Councilmember Sullivan as the voting delegate and forgo the designation of any alternates. At this time, staff does not have the resolutions to bring forward to the Committee for consideration because the LOCC has not released them. It is staff's understanding that the resolutions will be released either in late July or early August, at which time they can be analyzed by staff. Mrs. Smiley added that should the resolutions include any major issues, a special meeting can be called for the Committee to review and determine their recommendations prior to presentation to the full Council in August. Committee member David Couch made a motion to appoint Councilmember Jacquie Sullivan as the voting delegate. The motion was passed by a unanimous vote. The recommendation will be forwarded to the City Council for consideration. 6. CLOSED SESSION None 7. COMMITTEE COMMENTS None 8. ADJOURNMENT The meeting adjourned at 12:54:50 PM. cc: Honorable Mayor and City Council