11-08-76 Council Meeting Minutes

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Be it remembered that the Common Council of the City of South Bend met in the Council Chambers of the County -City Building on Monday, November 8, 1976, at 7:00 p.m., Council President Roger 0. Parent presiding. The meeting was called to order and the Pledge to the Flag was given. ROLL CALL PRESENT: Council Members Serge, Szymkowiak, Miller, Taylor, Kopczynski, Adams, Dombrowski, Horvath and Parent ABSENT: None Council Member Adams made a motion to resolve into the Committee of the Whole, seconded by Counci Member Dombrowski. The motion carried. COMMITTEE OF THE WHOLE Be it remembered that the Common Council of the City of South Bend met in the Committee of the Whole on Monday, November 8, 1976, at 7:02 p.m., with nine members present. ORDINANCE AN ORDINANCE APPROVING THE FORM AND TERMS OF LEASE AND TRUST INDENTURE AND ECONOMIC DEVELOP- MENT BONDS, AND AUTHORIZING THE EXECUTION THEREOF PERTAINING TO ADAPTO, INC. This being the time heretofore set for public hearing on the above ordinance, proponents and op- ponents were given an opportunity to be heard. Mr. Kenneth Fedder, attorney for the Economic Development Commission made the presentation for the ordinance. He said that application of a revenue bond issue for $200,000 on behalf of ADAPTO, INC., has been made to finance a proposed expansion of their manufacturing plant located at 23246 Keller Road. He indicated they were a tool and dye manufacturing plant. He said that this would mean more jobs for the community. He said the corporation attorney, Mr. Richard Morgan, was in the audience and could answer any questions. Council Member Kopczynski made a motion that this ordinance be recommended favorably to the Council, seconded by Council Member Dombrowski. The motion carried. ORDINANCE AN ORDINANCE AMENDING CHAPTER 7 OF THE MUNICIPAL CODE OF THE CITY OF SOUTH BEND, INDIANA, BY THE ADDITION OF ARTICLE 9 PERTAINING TO MASSAGE ESTABLISHMENTS, MASSAGE TECHNICIANS, AND THE PRACTICE OF MASSAGE. This being the time heretofore set for public hearing on the above ordinance, proponents and op- ponents were given an opportunity to be heard. Ms. Kathy Cekanski, Council's attorney, made the presentation for the amendments to the ordinance. She presented the proposed amendments to the City Clerk. She then read a memo to the Council dated November 8: Pursuant to your request, our office has studied and revised the proposed massage parlor ordinance. A copy of our amendments has been submitted for your review. It should be noted that since the last Council meeting in which this ordinance was discussed, several important matters have occurred. Two Indiana courts have ruled on the legality of massage parlor ordinances. First the Indianapolis ordinance was struck down on October 25, 1976 by Judge Gerald S. Zore, Marion County Superior Court. He held that the ordinance violated the due process and Zore further held that the "search" provisions of the ordinance violated the unreasonable search and seizure provisions of the U.S. Constitutson The third area of concern was that much of the Indianapolis ordinance which spoke to regulating sexual conduct was pre - empted by Indiana State Law. The second case was heard on October 13, 1976, in which Judge Alfred Mollering of the Superior Court struck down the Fort Wayne massage parlor ordinance. The court held that it violated due process provisions and contained vague language throughout. Additionally, our office has done extensive research into various other court decisions involving massage parlor ordinances and have reviewed laws adapted in other state! and cities. It should be further noted that representatives of the American Massage and Therapy Association have been most helpful in providing guidance in this area. This organization is a not - for - profit corporation which was founded in 1944. Its corporate headquarters are in Milwauke( Wisconsin and it is a national andprofessional organization for massage therapists for the United States and Canada. As a brief summary, the following will highlight by section the major amend- ments which have been submitted for your review and which meet the needs and interest of the City of South Bend. Analysis: Section 7 -110. Definitions. The definition section has been amen( to incorporate the latest legal definitions recommended by the A.M.T.A. It should be pointed out that the hours of instruction have been increased from 200 hours in three months to 1000 hours in six months. Section 7 -112. Massage Establishments License Required. Licensing should from a practical standpoint follow the definition section. It includes in the application the name of the applicant and deletes the fingerprint requirement. The Board of Public Works is incorporated rather than the Board of Public Safety. Since the division of the Board of Public Works and Safei there are no city license procedures which have ever had the Board of Public Safety review their license applications, therefore, the Board of Works and the City Controller's offices are the pro- per authorities in this area. Additionally, to the best of my knowledge, I do not know of a "utilities and licenses committee of the Board of Public Safety" which has ever operated in the City of South Bend. Yet this is the authority incorporated in the original ordinance. Section 7 -118. Permit or License Denial. This section allows the Board of Public Works to hear denials of licenses or permits on appeal. Section 7 -119. Grounds for revocation or Suspension of Licens( or Permit. This section incorporates all unlawful activity into one overall section. Section 7 -129. License or Permit Suspension or Revocation. No basic changes. Section 7 -121. Conducting a Nuisance. This section is recommended by the A.M.T.A. as setting forth the equitable relief available to the City. The remaining sections are substantially the same as proposed. Conclusion The amendments have been drafted in the interest of clarifying and strengthening the proposed massage parlor ordinance. It incorporates the latest research in the many constitutional areas which are included in this type of regulation. It is submitted to establish sound licensing pro- cedures and reasonable regulations which will meet the needs of the South Bend Community. She indicated she had not had an opportunity to review the amendments with the City Attorney. Council President Parent indicated they were coming close to having an ordinance that could be enforced. He said he liked the idea of requiring a public hearing before a license was issued. He indicated the Council's attorney would file a new ordinance which would incorporate licensing as well as other research that had been done. Council President Parent made a motion to continue public hearing on this ordinance until the December meeting, seconded by Council Member Dombrowski. The motion carried.