City of Loma Linda, CA Article III Certificates of Operation and Operator Permits

§ 5.24.070 Certificate and permit requirement.

A. No person shall own or manage any massage establishment in any location within the city without first having obtained an operator permit.

B. No massage establishment shall be allowed to operate within the city unless the business first obtains a certificate of operation. No certificate of operation shall be approved until each operator identified in the application has obtained an operator permit.

C. Any person desiring to obtain a certificate of operation and/or an operator permit shall make application in accordance with the provisions of this article, which application shall be accompanied by a nonrefundable fee in an amount established by resolution of the city council.

D. All applications shall be dated and shall contain the following statements:

1. A certification under penalty of perjury that the information contained in the application is true and correct; and

2. An authorization for the city, its officers, agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and to ensure continual compliance with all applicable provisions of law.

E. The provisions of Sections 5.24.050, 5.24.130, 5.24.140, 5.24.150 and 5.24.160 shall apply to any business that operates as a massage establishment, even if such business fails to obtain an operator's permit or certificate of operation. The city may immediately order a business that fails to have a certificate of operation or a permitted operator to cease operation.

F. Within thirty working days following receipt of a completed application(s), the community development director shall either issue the certificate of operation and/or operator permit or mail a written statement of the reasons for denial thereof. Notwithstanding the above, failure of the city to act upon a completed application within the time frame set forth above shall not be deemed approval of the application pursuant to this chapter. Any certificate of operation or any permit issued pursuant to this subsection shall be deemed conditional pending the city's receipt of the California Department of Justice report on the applicant's fingerprints. If the fingerprint report demonstrates that the applicant has made any false, misleading or fraudulent statement of material fact in the permit application or in any report or record required to be filed therewith, or discloses any disqualifying conduct, the permit shall be subject to denial or revocation pursuant to this chapter.

(Ord. 730 § 1, 2016)

§ 5.24.080 Operator permit.

A. Application—Contents. Applicants for operator permits shall submit the following information to the community development director on a form supplied by the city:

1. The full true name of the applicant;

2. A complete statement listing and explaining any and all aliases and fictitious names used by the applicant within the ten years immediately preceding the application;

3. The current residence address and business address and current residence and business telephone number of the applicant;

4. A list of all previous residential and business addresses for a minimum of eight years immediately preceding the present address of the applicant and the dates of residence for each address;

5. The applicant's place of birth, and original documentation to verify both the applicant's identity and employment authorization (if applicable), as listed under 8 U.S.C. 1324a(b)(1) and 8 C.F.R. 274a.2(b)(1). Documentation to satisfy this requirement may include, but is not limited to, a California driver's license, California identification card, social security card, resident alien ("green") card, United States passport (unexpired or expired), unexpired foreign passport that contains a temporary I-551 stamp, or an unexpired employment authorization document issued by the United States Government in compliance with 8 C.F.R. 274a.(b)(1)(v)A.;

6. The history of the applicant as to any similar business or occupation within ten years immediately preceding the filing of the application. Such information shall include, but not be limited to, the names and addresses of any other massage establishments or similar businesses the applicant has owned, managed, provided massage services at, or worked at, whether the applicant has had a permit or license to operate, manage, provide massage services at, or work at a massage establishment denied, revoked or suspended in any jurisdiction; the reasons for any such denial, revocation or suspension; and the business, activity or occupation the applicant engaged in subsequent to such denial, revocation or suspension;

7. All criminal convictions within the last ten years, excluding minor traffic violations, and the date and place of each such conviction and reason therefor;

8. Such other reasonable identification and information as the community development director may require in order to discover the truth of the matter specified as required to be set forth in the application;

9. The applicant shall have be photographed by the community development director, or otherwise supply a photograph as directed by the city; and

10. An acknowledgement that by applying for an operator permit, the applicant understands that they are responsible for all violations of employees or independent contractors that may take place in the massage establishment which they own or manage, and that any such violations are grounds for revocation of the operator permit.

B. Once the information required by subsection A of this section is submitted, the applicant shall have his or her fingerprints taken for a criminal history background (Livescan) check in the manner directed by the Loma Linda police department.

C. The community development director shall issue the operator permit, unless after investigation he or she makes any of the following findings:

1. The applicant has failed to provide information, documentation and assurances required by this chapter or by the community development director; has failed to reveal any fact material to qualification; or has supplied information that is untrue or misleading as to a material fact pertaining to the qualification criteria; or

2. The applicant is a person who has engaged in disqualifying conduct; or

3. There is substantial evidence that the applicant has engaged in disqualifying conduct, even if there is no conviction for such conduct; or

4. The applicant has violated any provision of this chapter, or any similar ordinance, law, rule, or regulation of any other public agency which regulates the operation of massage establishments; or

5. The applicant is not at least eighteen years of age; or

6. The applicant is delinquent in paying city fees or penalties owed in relation to any permit issued pursuant to this chapter.

D. Permits issued pursuant to this section shall remain in effect, unless revoked, for a period of three years. Applications for the renewal of a permit shall be filed with the community development director on a form supplied by the city. Temporary permits shall not be issued and expired permits are not valid unless the permittee has a written receipt showing that the renewal application was filed at least thirty days prior to expiration, without action having been taken by the community development director. Renewal applications shall be signed under penalty of perjury and shall be accompanied by a nonrefundable filing fee established by resolution of the city council. A permittee shall be required to update the information contained in his or her original permit application and provide any new and/or additional information as may be reasonably required by the community development director in order to determine whether the permit should be renewed, including all information required by subsections A and B of this section. Failure to provide this documentation shall be grounds for nonrenewal of the permit.

E. If the criminal history background check report demonstrates that the applicant has made any false, misleading or fraudulent statement of material fact in the permit application or in any report or record required to be filed therewith, or discloses any disqualifying conduct, the permit shall be subject to denial.

F. Automatic Issuance and Renewal for CAMTC Certificate Holders.

1. Any person who holds a valid CAMTC certificate shall only be required to provide the following information on a form that includes the statements set forth in Section 5.24.070(D):

a. The full true name of the applicant;

b. The current residence and business address and current residence and business telephone number of the applicant; and

c. The name and address of the massage establishment for which the operator permit is sought.

2. A copy of the applicant's CAMTC certificate and identification shall be provided with the application, along with a fee in an amount set by resolution of the city council.

3. The applicant shall be required to have his or her picture taken as specified above.

4. The operator permit shall automatically be issued upon completion of the form and verification of the validity of the CAMTC certificate by the community development director. No background check shall be required.

5. Renewals shall be required in accordance with subsection D of this section, but such renewals shall be automatic as long as the permittee maintains and provides a copy of his or her valid CAMTC certificate.

G. Every person to whom a permit has been granted pursuant to this chapter shall be issued an identification badge by the community development director which shall contain the person's name, photograph, expiration date and any other information deemed necessary by the community development director. The badge shall be worn so as to be readily visible at all times while on the premises of the massage establishment. The identification shall be surrendered to the community development director or designee upon request.

H. Permits issued pursuant to this chapter may not be assigned or transferred.

I. It is the duty of each operator to notify the community development director whenever there is a change in information which was required to be submitted in the application for the operator permit in the first instance. Such notification shall be in writing and made within ten business days of the change on a form provided by the city.

J. Each operator of a massage establishment shall be responsible for the conduct of all employees and independent contractors working on the premises of the business. Failure of the employees or independent contractors to comply with this chapter may result in the revocation of the operator's permit.

K. The operator of the massage establishment is responsible for verifying that all persons hold the appropriate CAMTC certificate as required by this chapter.

L. Any requirement of this chapter applying to an operator shall apply to each and every operator of a massage establishment.

(Ord. 730 § 1, 2016)

§ 5.24.090 Certificate of operation.

A. Applications for a certificate of operation shall be filed with the community development director and shall include the information set forth below:

1. The full name of the applicant;

2. The name under which the business is to be conducted, which name must match the name of the business under which the corresponding business license is issued under Chapter 5.04. No massage establishment business shall operate under any business name or conduct business under any designation not specified in the certificate of operation. If the applicant is a corporation, the name shall be exactly as shown on the articles of incorporation or on a valid DBA ("doing business as");

3. The address of the proposed massage establishment;

4. A detailed description of the operation and type of services to be provided by the massage establishment, including other therapies to be provided, and other businesses to be operated on the same premises;

5. The full name of each operator of the massage establishment;

6. A legal size copy of the floor plan approved as part of the conditional use permit, drawn to scale showing: entrances; exits; windows; interior doors; restrooms; all other separately enclosed rooms with dimensions, including, but not limited to, closets, storerooms, breakrooms, and changing rooms; and location of massage tables and chairs;

7. The full name, address, and phone number of the legal owner of the property, if other than the applicant on which the massage establishment is to be located, along with a copy of the signed lease and a notarized acknowledgement from the owner of the property that a massage establishment will be located on his or her property; and

8. The hours and days of operation.

B. The community development director shall issue a certificate of operation upon verification of the following:

1. The massage establishment will comply with all applicable laws, including, but not limited to, building, fire, zoning, health and safety regulations, as well as any conditions which have been imposed to comply with such laws; and

2. Each person identified as an operator has obtained an operator permit.

C. Every massage establishment for which a certificate of operation has been granted pursuant to this chapter shall display the certificate in a conspicuous place so it may be readily seen by persons entering the premises.

D. A certificate of operation is not transferable to a separate location of the same business, to a different business at the same location, or to the same business under different ownership at the same location, or the same business under a different name.

E. It is the duty of each operator to notify the community development director whenever there is a change in information which was required to be submitted in the application for the certificate of operation in the first instance. Any sale or transfer of any reportable interest of an owner in a massage establishment, which interest would be required to be reported under subsection A of this section in the first instance, shall render the certificate of operation temporarily suspended and subject to revocation in accordance with the provisions of this chapter unless prior to the effective date of such sale or transfer, the new owner applies for and obtains an operator permit.

F. Notwithstanding any other provision of this code to the contrary, where a notice of intent to suspend or revoke, or a notice of suspension or revocation, has been issued regarding a massage establishment, or the business has otherwise been required to close because of suspension or revocation proceedings against the operator, the community development director shall not process or issue a new application for a certificate of operation for said location unless or until the revocation or suspension proceedings are dismissed or a final determination is made that the current certificate of operation should not be suspended or revoked, or a two-year period has passed since the occurrence of the activity which gave rise to the suspension or revocation proceedings or other criminal actions.

G. Notwithstanding any other provision of this code to the contrary, when a massage establishment has been closed due to criminal activity and such decision is final, no new massage establishment may open in such location and no certificate of operation shall be issued for such location for a period of two years from the date of such final determination. For purposes of this section, closure due to criminal activity includes voluntary closure of the business after there have been arrests at the location or other notices relating to criminal activity or notices relating to suspension or revocation proceedings. This provision is not meant to prohibit the issuance of a certificate of operation to a business which initially failed to obtain a certificate of operation without any prior oral or written notification by the city that such was required.

H. Where the applicant for the certificate of operation is not the record owner, as shown on the latest county assessment roll, then upon issuance of the certificate, the city shall send written notice to the property owner advising of the issuance of the certificate and the regulations applicable to the massage establishment and the property pursuant to this chapter; this may be accomplished by including a copy of this chapter with the notice.

(Ord. 730 § 1, 2016)

§ 5.24.100 Suspension and revocation of permits and certificates.

A. Subject to the procedures set forth in this section, the community development director may suspend or revoke a permit issued pursuant to this chapter whenever the community development director determines that any of the following has occurred:

1. The permittee, or an employee or independent contractor working on the premises, is conducting operations in a manner contrary to the provisions of this code;

2. The permittee, or an employee or independent contractor working on the premises, is conducting operations in a manner which constitutes a public nuisance;

3. The permittee, or an employee or independent contractor working on the premises, is conducting operations in a manner which is detrimental to the health, safety or welfare of the city or its inhabitants;

4. There is substantial evidence of prostitution or other unlawful activity;

5. The permittee, or any employee or independent contractor working on the premises, has engaged in disqualifying conduct; or

6. The community development director makes any of the findings that would have justified denying the application in the first instance.

B. If, in the discretion of the community development director, an alleged violation is minor and capable of correction, then prior to suspension or revocation a written notice shall be given to the permittee of the alleged violation(s) involved to allow a period of time to correct the alleged violation(s), which period shall not exceed five business days, at the end of which period, an inspection shall be conducted to determine whether the alleged violation(s) has been corrected. For purposes of this section, written notice shall include either a notice of violation or an administrative citation.

C. If the community development director determines that an alleged violation is not minor or capable of correction, that an alleged violation(s) continues without correction, or that there have been previous violations of this chapter, even if for different reasons, then the community development director may issue a notice of intent to suspend or revoke, along with an administrative or criminal citation. Examples of a violation which will be determined by the community development director to be not capable of correction include, but are not limited to, substantial evidence of prostitution activity on the massage establishment premises or an immediate threat to public health, safety or welfare.

D. Notice of Intent to Suspend or Revoke. A notice of intent to suspend or revoke shall contain a statement of an alleged violation(s) which constitutes the basis for the suspension or revocation, notice of the right of the permittee to respond to the charges in writing to the community development director for a pre-appeal determination, notice of the right to appeal to the city manager, and notice that a failure to respond in the time specified shall constitute a waiver of the right to respond, but not the right to appeal. If an alleged violation is capable of correction, the notice shall also advise the permittee to correct the alleged violation(s) within the time to respond.

E. Response to Notice of Intent/Pre-Appeal Determination.

1. The time to respond and request a pre-appeal determination shall be five business days from the date of service of the notice, regardless of whether the materials upon which the notice of intent is based are provided to the permittee at that time.

2. If there is no response, the permit shall be considered suspended or revoked upon the expiration of time in which to respond and request a pre-appeal hearing.

3. If there is a response, the permit shall remain in effect until a determination is made by the community development director. In no event shall the community development director hold a hearing until at least five business days have passed from the time the city provides the materials upon which the notice of intent is issued to the permittee.

F. Suspension or Revocation.

1. If, after consideration of the permittee's response, the community development director determines that the notice of intent to suspend or revoke should be upheld, then the community development director shall issue a notice of suspension or revocation and serve it upon the permittee as well as any other interested person requesting a copy of the same. Where all massage activity is required to cease, notice shall also be served on the owner of the property if different from the operator or certificate holder. The notice shall include information about the right to appeal.

a. Upon issuance of a notice of suspension or revocation of a certificate of operation, all massage activity at the massage establishment shall cease and no activity for which the certificate of operation is required shall be conducted while any appeal may be pending.

b. Upon issuance of a notice of suspension or revocation of an operator permit, the operator must cease all work at the massage establishment. If there is no other person who has an operator permit which is not the subject of a suspension or revocation proceeding, then all massage activity at the massage establishment shall also cease and no massage activity shall be conducted while any appeal may be pending.

G. Surrender of Certificate of Operation and Permits. Any permittee shall immediately surrender his or her permit or certificate to the community development director upon its suspension or revocation. The operator shall immediately surrender the certificate of operation upon revocation of an operator permit if there is no other permitted operator.

(Ord. 730 § 1, 2016)

§ 5.24.110 Appeals to city manager.

A. Appeals.

1. Appeals shall be in writing and filed with the city clerk within the following time frames:

a. Appeals from any decision of the community development director to deny a permit shall be in writing, shall clearly state the applicable basis for the appeal, and shall be filed not later than ten calendar days following the giving of the notice of denial.

b. Appeals from a notice of intent to suspend or revoke a permit where no response is filed in accordance with Section 5.24.100(E) shall be filed not later than ten calendar days following the expiration of the response period.

c. Appeals from a notice of suspension or revocation issued after a response is filed in accordance with Section 5.24.100(E) shall be filed not later than ten calendar days following the giving of the notice of suspension or revocation.

2. The city clerk shall not accept an appeal from a decision of the community development director, and no hearing shall be held, unless the appellant has paid a filing fee, in an amount set by resolution of the city council, to defray the cost of such appeal. Any appeal without the timely payment of fees shall be considered to be untimely.

3. The scope of the appeal hearing pursuant to this section shall be limited to those issues raised by the appellant in the written appeal, as submitted pursuant to subsection (A)(1) of this section.

B. City Manager Action.

1. Upon receipt of a timely filed appeal, the city clerk shall set the matter for hearing before the city manager. The hearing shall be held not fewer than ten calendar days nor more than thirty calendar days from the date of the appeal request. The hearing may be continued from time to time upon the mutual consent of the parties. For the purposes of this section, "city manager" may include a hearing officer appointed by the city manager, who shall then act in the city manager's place.

2. The appellant shall be provided with notice of the time and place of the appeal hearing, as well as a copy of all relevant materials at least seven calendar days prior to the hearing.

3. At the time of such hearing, the city manager shall review the records and files relating to the decision.

a. The city manager shall permit any interested person to present any relevant evidence bearing on the issues involved in the matter.

b. In conducting the hearing, technical rules relating to evidence and witnesses shall not apply. Any relevant evidence may be admitted if it is material and if it is evidence customarily relied upon by responsible persons in the conduct of their affairs regardless of the existence of any common law or statutory rule which might make admission of such evidence improper over objection in civil actions. Hearsay evidence may be admissible if it is the sort upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The rules of privilege shall be applicable to the extent they are now, or are hereafter permitted in civil actions. Irrelevant, collateral, and repetitious testimony shall be excluded.

c. In determining whether a person should be disqualified for meeting the definition of person who has engaged in disqualifying conduct as set forth in Section 5.24.020, the city manager may consider: the nature and severity of the act(s) or crime(s); whether there were any additional subsequent act(s) or crime(s); the number of act(s) or crime(s); and how recent the act(s) or crime(s) were.

4. The appellant shall have the burden of proving that he or she meets the requirements for issuing the permit or certificate in the first instance; the city shall have the burden in proving that grounds exist for revoking or failing to renew a permit.

5. Based upon the evidence presented at the hearing, the city manager shall determine whether the decision should be affirmed, modified or reversed.

6. The city manager's decision shall be communicated in writing to the appellant within ten working days after the close of the hearing and submission of the matter to the city manager for decision. The city manager's decision shall state whether the decision is affirmed, modified or reversed and shall state the reasons therefor.

7. The decision of the city manager shall include notice that the decision is final and conclusive, that judicial review may be sought therefrom pursuant to California Civil Procedure Code Section 1094.5, and that any action filed in the superior court shall be filed within ninety days following the city manager's notice pursuant to California Civil Procedure Code Section 1094.6.

(Ord. 730 § 1, 2016)

§ 5.24.120 Notices.

A. All notices required to be given pursuant to this chapter shall be served on the responsible party (i.e., permittee, applicant, appellant, or a representative thereof) either by personal delivery or by deposit in the United States mail in a sealed envelope postage prepaid addressed to such responsible party as the name and address appear in the most recent application on file with the city. Service by mail shall be deemed to have been completed on the date deposited in the mail. Notices shall include information regarding appeal rights and a statement that the failure to file an appeal shall constitute a failure to exhaust administrative remedies.

B. In all cases where the certificate holder is not the property owner, notices shall also be sent to the property owner of record where the notice relates to possible closure of the business due to suspension or revocation.

(Ord. 730 § 1, 2016)