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Home My WebLink AboutAgenda Report - February 21, 1990 (39)MEMORANDUM To: Honorable Mayor and Council Members From: Bob McNatt, City Attorney Date: February 21, 1990 Sub, : Hm-r Occupation Permit For Nail Salon C;l X48*2 - 90 614,4 8e. s U�f'oe At the February 7, 1990 Council meeting, a question was raised by Penny Gamaza regarding Horm Occupation Permits for nail salons. Specificall;, A Gamaza is in the process of purchasing a residence at 10 N. Central Street where she would like to operate �a nail salon (doing artificial nails). However, she and the real estate broker with Wm she has been working have been informed by Con muni ty Development Director Jim Schroeder that it is his position that the nail salon is synonymous with a beauty parlor, and so is ineligible for a Hane Occupation Permit under Municipal Code Section 17.03.290. This section specifically excludes from home occupations "clinics, hospitals, barber shops, beauty parlors, real estate offices, and animal hospitals." At Council direction, I have looked into the matter and although I an sympathetic with Ms. Gamaza's situation, I am forced to agree with Xt Schroeder. In analyzing the situation, I noted Business and Professions Code §7321(e) which includes manicuring or doing nails in the definition of "cosmetology." Ms. Gamaza is licensed by the State as a manicurist. Further, Business and Professions Code §1380 defines a "cosmetology establishment" as any premises where "... any branch of cosmetology ... is practiced (including apparently, iranicuring as discussed in the previous Business and Professions section) except for "manicuring as done in barber shops . . . " The most reasonable interpretation of this section I can draw is that any premises where manicuring is legally done is either a "cosmetology establishment" (which appears to be synonymous with "beauty parlor") or a "barber shop." Both barber shops and beauty parlors are excluded uses for Home Occupation Permits under Municipal Code Section 17.03.290. Of course, this is my opinion only. No case law was found which might help us handle the situation. The Council could choose to disagree and simply declare that in its opinion, nail salons are not "beauty parlors." However, that could set a bad precedent if the Ordinance was viewed as being subject to interpretation on a case-by-case basis without specific guidelines or stated criteria to be used in all other cases. Ordinances which are so loosely drafted or applied as to leave unlimited discretion to grant or deny permits are frequently overturned. --------------------- HOM0CCPP.i TY.TA.0I V 4 Honorable Mayor and Council Members February 21, 1990 Page Two Although this case may be meritorious, "e would be off i ga ted to treat all other applicants the same, which might be less desirable in future situations. As an aside, I have been told that by way of precedent, at least one other Home Occupation Permit for a nail salon exists, but a check of our records fails to confirm that. There are three options as I presently see them: 1) The Council can, as previously mentioned, simply declare that i t s interpretation of "beauty parlor" does not include nail salons. For reasons discussed above, neither I nor Jim Schroeder can recommend t h a t approach. 2) The Council can modify the Haw Occupation Permit Ordinance to more clearly describe uses and businesses allowed and/or prohibited under Home Occupation Permits. Assuming Council directs staff to prepare an amended ordinance, that would require at least 2 months to become effective, assuming the Council voted to adopt the amended ordinance. Ms. Gan -mm told ne that she was not in favor of modifying the Ordinance to allow nail salons generally, because it could allow others to run larger operations serving more patron; from residences, with harmful results to her business. 3) It is at least theoretically possible to rezone the property to such designation as commercial -residential (C-R) which would allow the intended use. However, since this property is located in the east side downzoning area, this does not appear practical nor feasible. Of these options, modification of the Ordinance seems most practical to me. Although this would require some weeks to complete, it could handle this situation and also allow the Cityto specify by ordinance, certain requirements now only treated as policy, as shown on the face of the Fbar, Occupation Permit itself (attached). I have spoken with Ms. Gamaza, who did not seem to favor any of the specified options. i 1 G'`✓`�-:--- -� Bob McNatt City Attorney attachment c,--: Community Cevelooment Director HOMOCCPP,/TYTA.CiV ^6ft COMMUNITY DEVELOPMENT I ,1ME OCCUPATION WDEPARTMENT PERMIT NAME OF APPLICANT: STREET ADDRESS: BUSINESS NAME: DESCRIPTION OF BUSINESS: PHONE NUMBER: BUSINESS USE OF ADDRESS: ( )OFFICE ONLY ( )OTHER, DESCRIBE _ ESTIMATED NUMBER OF VISITORS PER WEE -Y: BUSINESS WILL B" ( )PART-TIME ( )FULL-TIME APPLICANT IS: ( )OWNER ( )RENTER OF ABOVE LISTED PROPERTY. ZONING: ( A ( )P -D IF APPLICANT IS RENTER. THE FOLLOWING "CONSENT OF OWNER" MUST BE SIGNED BY OWNER. I 1 ■ ov:ner of the above listed property. have familiarized myself with the above application and whereby give my consent to the applicanr for a Ham Occupation Permit at this address. SIGNED: PHONE : DATE: i, the undersigned. agree to the following conditions for Hone Occupation Permits. The proposed hone occupation wili: 1 not be noticeable from the exterior of the dwelling unit; 2. not be carried out by persons other than those residing at this address; 3. be clearly incidental to the use of the dwelling for residential purposes and will no: change the residential character of the dwelling or neig*borhood; 4. not have any display or inventory of commodities on the premises; 5. no; substantially increase the vehicular traffic in t:he immediate area c` tho dwelling; 6. not involve the use of more than one room in the owellinc; 7. not involve the use of power -driven equipment having a motor or motors of more then 1/2 horseoower; B., not list the address of the home occupation in any advertisements; c, m: use signs except ar, unlit and building -mounted nameplate not more tnan two square feet in area identifying the name and home occupation; 10. not create a nuisance by reason of noise, odor, ausz, vibration. fumes, smoke, electrical interference, increased traffic, or other causes; 11. not involve the parking of more than one vehicle used for the hone occupation and personal use (no heavy- dcty commercial vehicles allowed); 12. be the only home occupation run out of the above address; and 13. also understand that the home occupation is subject to review by City staff and ray be revoked at any time upon violation of an.1 of the above stated conditions. SIGNED: OATS: DATE ISSUED: HOME OCCUPATION P---PM-.T HUMS=R: so APPROVED BY: BU'SiNESS LI_�NSz !+il"!3SR: