Note: Prior ordinance history: Ord. Nos. 674, 714, 1307,
1995, 2290, 2464, 2611, 2667 and 2808.
Prior code history: §§ 4191, 4192, 4193, 4193.1,
4194, 4195, 4196, 4196.1, 4196.2 and 4198.
The City Council finds and declares as follows:
A.
The
permit requirements and restrictions imposed by this chapter are reasonably
necessary to protect the health, safety, and welfare of the citizens
of the City.
B.
The
City is authorized to regulate massage establishments pursuant to
California Business and Professions Code Sections 460(c), 4612(b)
and 16000, California Government Code Section 51030 et seq., and Section
7 of Article XI of the California Constitution.
C.
There
is a significant risk of injury to massage clients by improperly trained
and/or educated massage practitioners and this chapter provides reasonable
safeguards against injury and economic loss.
D.
There
is opportunity for acts of prostitution and other unlawful sexual
activity to occur in massage establishments. Courts have long recognized
massage as a pervasively regulated activity and that some massage
establishments are brothels in disguise. The establishment of reasonable
standards and restrictions on operations will serve to reduce the
risk of illegal activity.
E.
The
City Council recognizes that massage establishments may have a serious
deleterious effect upon adjacent areas, as well as the areas in which
they are located, when illegal activities such as pandering or prostitution
occur thereat.
F.
The
City Council understands that illegal activities occurring in massage
establishments often incorporate the exploitation of women and new
immigrants to this country.
G.
The
regulations and restrictions contained in this chapter tend to discourage
massage establishments from degenerating into houses of prostitution
and the means utilized in this chapter bear a reasonable and rational
relationship to the goals sought to be achieved.
(Ord. 2856 § 1, 2015)
The following definitions of words shall apply to this chapter:
means the act of applying manual pressure to parts of the
body with the intention of treating illness and/or disease or relieving
pain.
means an applicant for an operator's permit.
means the California Massage Therapy 2Council, a non-profit
organization formed pursuant to California Business and Professions
Code Section 4600 et seq.
means any individual certified by CAMTC as a certified massage
practitioner or as a certified massage therapist pursuant to California
Business and Professions Code Section 4600 et seq.
means the City of Garden Grove.
means the City Manager of the City or designee.
includes every owner, partner, operator, manager, supervisor,
person and worker, whether paid or not, full-time or part-time, who
renders personal services of any nature or is otherwise employed in
support of the operation of a massage establishment. For purposes
of this chapter, the term "employee" shall also include certified
massage practitioners who provide massage services, whether as independent
contractors or otherwise, in or for a massage establishment.
means a person or persons designated or permitted by the
owner or operator of the massage establishment to act as the agent
of the owner or operator in managing day-to-day operations. Evidence
of management may include, but is not limited to, evidence that the
individual has power to direct or hire and dismiss employees, control
hours of operation, create policy or rules, or purchase supplies.
A massage establishment may have more than one manager.
means any method of applying pressure on, causing friction
against, stroking, kneading, rubbing, tapping, pounding, vibrating,
acupressure, stimulating, compression on or movement of the external
parts of the human body of another, either directly via the use of
hands or some other body part, with or without the aid of or by means
of any mechanical or electrical apparatus, or other appliance or device,
for money or any form of consideration. Massage may incorporate supplementary
aids such as rubbing alcohol, liniment, antiseptic, oil, powder, cream,
lotion, ointment or other similar preparations commonly used in this
practice.
means any business or establishment with a fixed location
where any individual, firm, association, partnership, limited liability
company, corporation, or combination of individuals, offers, engages
in, conducts, carries on or permits to be engaged in, conducted or
carried on, massage services within the City, including the residence
or business office of a sole provider who provides massage services
at such residence or business office. Any type of business or establishment
at which massage services are provided shall be considered a massage
establishment for purposes of this chapter, regardless if the business
holds itself out as something other than a massage establishment and/or
also offers or provides other types of products or services. Any business
or establishment that offers any combination of massage services and
bath facilities, including, but not limited to, showers, baths, wet
and dry heat rooms, pools and hot tubs, shall be deemed a massage
establishment under this chapter. The residence or business office
of a sole provider who only engages in out-call massage and does not
provide massage services at such residence or business office shall
not be considered a massage establishment.
means a permit issued to any person desiring to operate a
massage establishment by the City upon submission of satisfactory
information and satisfaction of the requirements pursuant to the provisions
of this chapter.
shall mean the provision of massage services at a location
other than at a massage establishment. Such locations may include,
but are not limited to, hotel rooms, offices, or patron residences.
means any and all persons who have an ownership interest
in a massage establishment and/or responsibility, in whole or in part,
for its ongoing operations including, but not limited to, any of the
following persons: the sole proprietor of a sole proprietorship, any
general or limited partner of a general or limited partnership, any
shareholder of a corporation, any member or manager of a limited liability
company, or any person who has an ownership interest in a massage
establishment, whether as an individual, corporation, limited liability
company, general partner, limited partner, shareholder, member or
otherwise.
means any individual or combination of individuals, sole
proprietor, firm, association, partnership, corporation, limited liability
company, joint venture, or other entity.
means the City's Police Chief, or designee, who is responsible
for promulgating rules, regulations, and requirements consistent with
the provisions of this chapter and all other laws in connection with
the issuance of an operator's permit.
means any legal form of business organization where the business
owner owns 100% of the business, is the only person who provides massage
services for compensation for that business pursuant to a valid and
active State Certificate, and has no other employees or independent
contractors.
means a valid and current certificate issued by CAMTC pursuant
to California Business and Professions Code Section 4600 et seq.,
as may be amended from time to time.
(Ord. 2856 § 1, 2015)
A.
Except as otherwise provided in Section 5.12.110, no individual shall engage in, conduct, carry on, practice or perform massage services within the City without first obtaining and thereafter maintaining State Certification and presenting proof of such State Certification, in accordance with the provisions of this chapter.
B.
Except as otherwise provided in Section 5.12.110, no person shall engage in, conduct or carry on, or permit to be engaged, conducted, or carried on in or upon any premises within the City, the operation of a massage establishment without first obtaining and thereafter maintaining an operator's permit pursuant to this chapter, and without otherwise complying with the provisions of this chapter.
C.
No owner,
operator or manager shall employ or retain any individual to conduct,
carry on, practice or perform massage services within the City unless
such individual has a State Certificate. For purposes of this chapter,
an owner, operator or manager employs or retains a person if: (1)
that individual is a directly paid employee of the massage establishment;
(2) that individual's association with the massage establishment is
that of an independent contractor who receives compensation for massage
services provided to patrons of the massage establishment; or (3)
that individual receives a patron referral(s) from the massage establishment
for massage services and arranges in any way for compensation relating
to such services to flow to such owner, operator, manager or massage
establishment.
(Ord. 2856 § 1, 2015)
A.
An application
for an operator's permit shall be filed on forms provided by the Police
Chief, and submitted under penalty of perjury. The application shall
include, without limitation, the following information, documents,
and fees:
1.
The
type of legal entity or entities owning the proposed massage establishment,
i.e., whether a sole proprietorship, partnership, limited liability
company, corporation, or otherwise. If the applicant is a corporation,
the name of the corporation shall be set forth exactly as shown in
its articles of incorporation or charter together with the state and
date of incorporation and the names and residence addresses of each
of its current officers and directors, and of each shareholder or
other person who has an ownership interest in the corporation. If
the applicant is a limited liability company, the name of the limited
liability company shall be set forth exactly as shown in its articles
or organization or other organizational document together with the
state and date of organization and the names and residence addresses
of each of its current officers and directors, and of each member
or other person who has an ownership interest in the limited liability
company. If the applicant is a partnership, the application shall
set forth the name and residence addresses of each of the partners,
including limited partners. If it is a limited partnership, it shall
furnish a copy of its certificate of limited partnership filed with
the Secretary of State. If one or more of the partners is a corporation
or limited liability company, the provisions of this subsection pertaining
to corporations and limited liability companies shall apply. An applicant
that is a corporation, limited liability company or partnership shall
designate one of its officers, members, managers, or general partners
to act as its responsible managing officer. Such designated individual
shall complete and sign all application forms required for an individual
applicant under this chapter, but only one application fee shall be
charged.
2.
The
precise name under which the massage establishment is to be conducted.
3.
The
present or proposed address and telephone numbers of the massage establishment.
4.
The
tax identification number used for income tax reporting for the massage
establishment.
5.
A
complete description of all services to be provided at the proposed
massage establishment.
6.
A
complete current list of the names and residence addresses of all
current or proposed employees of the massage establishment and the
name and residence address of each current or proposed manager(s)
proposed to be principally in charge of the operation of the massage
establishment.
7.
True
and correct copies of the current State Certificate and CAMTC-issued
identification card for each employee who will be providing massage
services at the massage establishment.
8.
A
description of any other business to be operated on the same premises
as the massage establishment.
9.
The
name, address, and description of any other business within the City
or the State which is owned, wholly or in part, or operated by the
applicant.
10.
A statement signed by the applicant authorizing 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 the applicable provisions of law.
11.
A statement signed by the applicant confirming that the massage establishment
shall employ and only permit certified massage practitioners to provide
massage services at the massage establishment.
12.
A statement signed by the applicant confirming that the massage establishment
shall ensure that all independent contractors who provide massage
services at the massage establishment shall be in possession of a
valid and current City business tax certificate at all times when
massage services are provided.
13.
A statement signed by the applicant acknowledging that the applicant,
owner(s), operator(s) and manager(s) shall each be responsible for
the conduct of all employees on the premises of the massage establishment
and that failure to comply with this chapter, or any local, state
or federal law, including California Business and Professions Code
Section 4600 et seq., may result in the revocation of the operator's
permit and civil, administrative, or criminal penalties.
14.
The following personal information concerning the applicant and each
owner, operator, and manager of the massage establishment:
a.
Full complete name and all aliases or fictitious names used within
the last 10 years.
b.
A valid and current driver's license and/or identification card issued
by a state or federal government agency or other photographic identification
bearing a bona fide seal by a foreign government.
c.
Current and all previous residential addresses for the last eight
years.
d.
Date of birth.
e.
Height, weight, color of hair, eyes, and sex.
f.
Two front-faced portrait photographs at least two inches by two inches
in size taken within 30 days of submission of the application.
g.
The complete business, occupation, and employment history for eight
years preceding the date of application, including, but not limited
to, the massage or similar business history and experience of the
applicant and each owner, operator, and manager.
h.
The complete massage permit history of the applicant and each owner,
operator, and manager; whether such person has ever had any permit
or license issued by any agency, board, city, county, territory, or
state; the date of issuance of each such a permit or license; whether
any such permit or license was ever denied, revoked, suspended or
refused to be renewed, and the reasons therefor.
i.
All criminal convictions, including pleas of nolo contendere, within
the last 10 years including those dismissed or expunged pursuant to
California Penal Code Section 1203.4, but excluding minor traffic
violations, and the date and place of each such conviction and reason
therefor.
j.
A complete set of fingerprints taken by the Police Department, subject
to a fee to cover actual costs.
15.
The name and address of the owner and lessor of the real property
upon or in which the massage establishment is to be conducted. In
the event the applicant is not the legal owner of the property, the
application must be accompanied by a copy of the lease and a notarized
acknowledgment from the owner of the property that a massage establishment
will be located on his or her property, and that the massage establishment
shall be subject to this chapter.
16.
Such other identification and information as the Police Chief may
reasonably require in order to discover the truth of the matters herein
specified and as required to be set forth in the application.
17.
A written statement signed and dated by the applicant that he or
she certifies under penalty of perjury that all information contained
in the application is true and correct.
B.
An application
for an operator's permit shall be accompanied by a non-refundable
application fee in an amount established by resolution of the City
Council.
C.
If,
at any time during the application process or during the term of an
operator's permit, any of the information provided in the application
for an operator's permit on file with the City changes, for example
by a change in employees or manager(s), the owner or operator shall
notify the Police Chief in writing of such change within 10 business
days after such change.
(Ord. 2856 § 1, 2015)
A.
Upon
receipt of a complete application for an operator's permit, the Police
Chief shall conduct an investigation to ascertain whether such permit
should be issued as requested. The Police Chief shall, within 60 days
of receipt of a complete application, approve, conditionally approve,
or deny the application. The 60-day period may be extended by the
Police Chief for up to 30 additional days to complete the investigation.
The Police Chief shall issue such permit unless he or she makes any
of the following findings:
1.
Any
owner, operator, manager or employee of the massage establishment
has been convicted of a violation of Section 266i, 315, 316, 318,
or subdivision (b) of Section 647 of the California Penal Code, or
has been convicted in any other state of any offense that, if committed
or attempted in the State of California, would have been punishable
as one or more of the above-mentioned offenses.
2.
Any
owner, operator, manager or employee of the massage establishment
has been convicted of any felony offense involving the sale of a controlled
substance specified in Section 11054, 11055, 11056, 11057, or 11058
of the California Health and Safety Code, or has been convicted in
any other state of any offense that, if committed or attempted in
the State of California, would have been punishable as one or more
of the above-mentioned offenses.
3.
Any
owner, operator, manager or employee of the massage establishment
is required to register under the provisions of Section 290 of the
California Penal Code.
4.
Any
owner, operator, or manager of the massage establishment has within
eight years preceding the date of the application:
a.
Engaged in conduct in another jurisdiction which, if it had occurred
within the City, would have been a violation of law and/or would constitute
grounds for denial, suspension, or revocation of an operator's permit
under this chapter.
b.
Been subjected to a permanent injunction against the conducting or
maintaining of nuisance pursuant to Sections 11225 through 11235 of
the California Penal Code, or any similar provisions of law in a jurisdiction
outside the state.
c.
Engaged in conduct which would constitute an offense as described in subsection (A)(1) of this section.
d.
Been convicted of an act involving dishonesty, fraud, deceit or moral
turpitude or an act of violence, which act or acts are related to
the qualifications, functions, or duties of the owner, operator, or
manager.
e.
Had a massage operator or massage technician permit or other similar
license or permit denied, suspended, revoked, or refused to be renewed
for cause by a licensing authority or by any city, county, or state.
5.
The
applicant has made a false, misleading, or fraudulent statement or
omission of fact to the City in the permit application process.
6.
The application does not contain all of the information required by Section 5.12.040 of this chapter.
7.
The
massage establishment as proposed by the applicant does not comply
with all requirements of this chapter and all other applicable laws,
including, but not limited to, health, zoning, fire and safety requirements
and standards.
8.
Within
a 24-month period prior to the submittal of the application, the location
of the proposed massage establishment: (i) has been the site of a
violation of this chapter, or any similar criminal or civil ordinance,
law, rule, or regulation of the State of California or any other public
agency related to the operation of massage establishments; or (ii)
has been the site of a massage establishment that was closed due to
criminal activity. For purposes of this subsection, closure due to
criminal activity includes voluntary closure of a massage establishment
after there have been arrests at the location or other notices relating
to criminal activity.
B.
Prior to commencing operations pursuant to an operator's permit issued by the Police Chief pursuant to this chapter, applicants shall obtain a business tax certificate pursuant to Title 5 of the Garden Grove Municipal Code and any and all appropriate zoning or land use approvals required pursuant to Title 9 of the Garden Grove Municipal Code, including any amendments thereto.
C.
An operator's
permit issued pursuant to this chapter does not authorize the owner
or operator to operate a massage establishment until the owner or
operator has complied with all applicable business licensing or tax
requirements, zoning requirements, building requirements, and all
other applicable federal, state, and City laws and regulations.
(Ord. 2856 § 1, 2015)
Each owner, operator and manager of a massage establishment
shall be responsible for ensuring compliance with each of the requirements
of operation, which shall apply to all massage establishments.
A.
Facilities.
1.
Subject
to applicable provisions of the City's codes, a recognizable and legible
sign shall be posted at the main entrance identifying the business
as a massage establishment.
2.
No
massage establishment located in a building or structure with exterior
windows fronting a public street, highway, walkway, or parking area,
shall, during business hours, block visibility into the interior reception
and waiting area through the use of curtains, closed blinds, or any
other material that obstructs, blurs or darkens the view into the
premises.
3.
The
hours of operation shall be displayed in a conspicuous place in the
reception area and in any front window clearly visible from outside
of the massage establishment. Patrons and visitors shall be permitted
in the massage establishment only during the posted hours of operation.
4.
Front
doors used for patron access shall remain unlocked during business
hours unless the massage establishment is a business entity owned
by one individual with one or no employees or independent contractors.
5.
Minimum
lighting shall be provided in accordance with the City's electrical
code and, in addition, at least one artificial light of not less than
40 watts shall be provided in each room or enclosure where massage
services are performed and shall be activated at all times while a
patron is in such room or enclosure.
6.
Closed
cabinets or other covered space shall be provided and utilized for
the storage of clean linens, and receptacles acceptable to the City
shall be provided for the deposit of soiled linen.
7.
The
walls in all rooms where water or steam baths are given shall have
a washable, moldresistant surface.
8.
A
minimum of one toilet and one separate wash basin shall be provided
for patrons in each massage establishment, which basin shall provide
soap or detergent and hot running water at all times. A permanently
installed soap dispenser, filled with soap, and a single service towel
dispenser shall be provided at the restroom handwash sink. A trash
receptacle shall be provided in each toilet room. Showers may be provided
at the operator's option.
9.
All
massage establishments shall have clean and sanitary towels, sheets
and linens in sufficient quantity to meet the requirements of this
chapter. Reuse of towels, sheets and linens is prohibited unless the
same have first been laundered. Heavy white paper may be substituted
for sheets, provided that such paper is used only once and then discarded
into a sanitary receptacle.
10.
All walls, ceilings, floors, pools, showers, bathtubs, steam rooms
and all other physical facilities including appliances and apparatuses
for the massage establishment must be in good repair and maintained
in a clean and sanitary condition. Wet and dry heat rooms, steam or
vapor rooms, or steam or vapor cabinets, shower compartments and toilet
rooms shall be thoroughly cleaned and disinfected each day the business
is in operation. Bathtubs shall be thoroughly cleaned and disinfected
after each use.
11.
Disinfecting agents and sterilizing equipment shall be provided for
any instruments used in performing acts of massage and the instruments
shall be disinfected and sterilized after each use.
12.
A massage table shall be provided in each massage room or enclosure
and the massage shall be performed on this massage table. The tables
must have a minimum height of 18 inches. Two-inch thick foam pads
with a maximum width of four feet may be used on a massage table and
must be covered with durable, washable plastic or other waterproof
material. Beds, mattresses, waterbeds, futons, sofa beds, or any type
of portable or convertible beds are not permitted on the premises.
13.
No part of the massage establishment shall be used for residential
or sleeping purposes.
B.
Operations.
1.
No
massage establishment shall be open for business or operated between
the hours of 10:00 p.m. and 7:00 a.m.
2.
a.
A register of all certified massage practitioners who are currently
providing, or who have previously provided, massage services on the
premises, showing the names, nicknames, and aliases used by such employees,
along with the dates of their employment and termination, if applicable;
and
b.
Copies of each certified massage practitioner's current State Certificate
and CAMTC-issued identification card, shall be maintained on file
on the premises of each massage establishment, and shall be made available
upon request to any individual, including, but not limited to, any
duly authorized official of the City.
3.
Within
10 business days of a massage establishment hiring or contracting
with a new certified massage practitioner to provide massage services,
written notice of the name and residential address of the new employee
and copies of his or her current State Certificate and CAMTC identification
card shall be filed with the Police Chief.
4.
Written
notice shall be provided to the Police Chief within five days of the
expiration, revocation, suspension, or surrender of an employee's
State Certification, and no employee whose State Certification is
expired, revoked, suspended, or surrendered shall be permitted to
provide massage services at the massage establishment until and unless
valid State Certification have been reestablished and notice and copies
of such employee's current State Certificate and CAMTC identification
card have been provided to the Police Chief.
5.
All documents or information pertaining to a certified massage practitioner that is required to be maintained or provided pursuant to this subsection B shall be maintained at the massage establishment for a minimum of two years following the date that the certified massage practitioner ceases providing massage services at the massage establishment.
6.
A
manager shall be present on the premises at all times the massage
establishment is open. A written statement designating the person
or persons with power to act as a manager shall be filed with the
Police Chief prior to commencement of operation of the massage establishment
and within 10 days of any managerial change.
7.
The
name of each on-duty manager and each on-duty certified massage practitioner
shall be posted in a conspicuous public place in the lobby of the
massage establishment on a daily basis.
8.
No
massage establishment shall be open for business without having at
least one certified massage practitioner on the premises and on-duty.
9.
Any
and all employees providing massage services shall carry and have
on their persons, visible for the patron to see, a current and valid
CAMTC-issued identification card that was issued to them.
10.
Any and all changes of address or ownership of a massage establishment
shall be reported immediately to the Police Chief. Operator's permits
are issued to specific owners and for specific locations only. A new
operator's permit shall be obtained prior to the proposed relocation
of a massage establishment, the opening of another location, or a
change in ownership of the massage establishment.
11.
No massage establishment shall operate as a school of massage, or
use the same facilities as that of a school of massage.
12.
Each service offered, the price thereof, and the minimum length of
time such service shall be performed shall be posted in an open and
conspicuous public location in each massage establishment. All letters
and numbers shall be capitals, and not less than one inch in height.
No services shall be performed and no sums shall be charged for such
services other than those posted. Nothing herein prohibits a voluntary
tip from being paid by the patron. All arrangements for services to
be performed shall be made in a room in the massage establishment
which is not used for administration of massages, baths or health
treatments, unless no other room exists in the massage establishment.
13.
Any posted signs which are in a language other than English shall
also be posted in English.
14.
The operator's permit issued to the massage establishment shall at
all times be displayed in an accessible and conspicuous place, visible
from the entrance and/or reception and waiting area of the massage
establishment.
15.
Copies of the current State Certificates held by the employees providing
massage services at the massage establishment shall at all times be
displayed in an accessible and conspicuous place in clear view of
the public.
16.
No alcoholic beverages or controlled substances shall be sold, served,
furnished, kept, consumed, or possessed on the premises of any massage
establishment.
17.
A notice substantially similar to the notice required by Section
52.6 of the California Civil Code shall be posted in a conspicuous
place near the public entrance of each massage establishment or in
another conspicuous location in clear view of the public and employees
where similar notices are customarily posted.
C.
Prohibited
Conduct.
1.
Each
owner, operator and manager shall be responsible for the conduct of
all employees providing massage services while such employees are
on the premises of the massage establishment. Any act or omission
of any employee constituting a violation of this chapter shall be
deemed the act or omission of each of the owners, operators, and manager(s)
for purposes of determining: (a) compliance with this chapter; and
(b) whether the operator's permit, business tax certificate, and/or
any other permit required by the City shall be revoked, suspended,
denied or renewed.
2.
No
owner, operator or manager shall hire, employ or allow an individual
to perform massage services unless such individual possesses a valid
and current State Certificate. Each owner, operator and manager of
a massage establishment shall have a continuing obligation to verify
that all employees providing massage services hold the State Certification
required by this chapter.
3.
No
electrical, mechanical or artificial device shall be used by any massage
establishment staff for audio and/or video recording or for monitoring
the performance of a massage, of the conversation or of other sounds
in the massage rooms or enclosures, without the prior written consent
of the patron.
4.
No
employee shall violate the provisions of Section 647(b) of the California
Penal Code, or any other state law involving a crime of moral turpitude.
5.
No
employee shall engage in any form of unprofessional conduct as defined
by Section 4609(a)(1) of the California Business and Professions Code,
as may be amended from time to time, including, without limitation:
a.
Engaging in any form of sexual activity on the premises of a massage
establishment.
b.
Engaging in sexual activity while providing massage services for
compensation.
c.
Providing massage of the genitals or anal region.
d.
Providing massage of female breasts without the written consent of
the person receiving the massage and a referral from a licensed California
health care provider for such massage.
6.
No
employee shall dress, while engaged in the practice of massage, or
while visible to patrons in the massage establishment, in any of the
following:
a.
Attire that is transparent, see-through, or substantially exposes
the person's undergarments.
b.
Swim attire, if not providing a water-based massage modality approved
by CAMTC.
c.
A manner that exposes the employee's breast, buttocks, or genitals.
d.
A manner that constitutes indecent exposure in violation of Section
314 of the California Penal Code.
7.
No
employee shall expose their genitals, pubic region, buttocks, anus,
or in the case of a female, her breasts below a point immediately
above the top of the aureole, to the view of a massage establishment
patron.
8.
A
massage establishment patron's genitals, anus, and in the case of
a female, her breasts, must be fully covered at all times while a
certified massage practitioner or other employee is present in the
same room as the patron.
(Ord. 2856 § 1, 2015)
Any duly authorized official of the City, including, but not
limited to, the City police, designated representatives, code enforcement
officers, health officials and building and fire inspectors, shall
have the right to enter any massage establishment premises from time
to time during regular business hours prior to the issuance of an
operator's permit and subsequently thereafter for the purposes of
making reasonable inspections to ensure compliance with this chapter
and other applicable laws, including building, fire, electrical, plumbing
or health and safety regulations.
(Ord. 2856 § 1, 2015)
Whenever a City official makes an inspection of a massage establishment
and finds that any provision of this chapter or any other applicable
provision of this Code has been violated, the City official may give
notice of such violation by means of an inspection report or other
written notice, including, but not limited to, issuing a citation
for each and every violation of this chapter or other applicable provision
of this Code. In any such notification, the investigating official
shall:
A.
Set
forth the specific violation or violations found;
B.
If appropriate,
establish a specific and reasonable period of time for the correction
of the violation or violations. If the investigating official determines
that the violation or violations are minor in nature, the investigating
official may issue a warning to the massage establishment owner and/or
operator that any further violation of this chapter or other applicable
provision of this Code may result in revocation or suspension of the
operator's permit. No time to correct need be given in the event of
health and safety violations or violation of criminal law; and
C.
State
that failure to comply with any notice issued in accordance with the
provisions of this chapter or other applicable provision of this Code
may result in revocation or suspension of the operator's permit.
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Nothing in this section shall preclude the investigating official
from initiating suspension, revocation or other legal proceedings,
or issuing a criminal or administrative citation, if he or she deems
it appropriate based on the violation(s) found to exist, rather than
first issuing a warning or a notice of violation.
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(Ord. 2856 § 1, 2015)
A.
No operator's
permit issued hereunder shall be transferable to any other person,
owner, location, or massage establishment. A new and/or separate operator's
permit shall be obtained for each separate massage establishment and/or
location and in the event of any change in ownership of a massage
establishment. Any attempt to transfer an operator's permit to another
person or location is hereby declared invalid and the operator's permit
shall automatically become void effective the date of such attempted
transfer.
B.
An operator's
permit shall be good for and expire in 12 months from the date of
issuance, unless suspended or revoked.
C.
Renewal
applications with required application fee shall be filed with the
Police Chief no later than 30 days prior to the expiration of the
12-month permit term.
D.
Each
applicant for renewal shall file such information as may be reasonably
required by the Police Chief.
(Ord. 2856 § 1, 2015)
A.
No person
shall perform an out-call massage in the City without possessing a
valid and current State Certificate.
B.
Notwithstanding
any other provision of this chapter, an operator's permit shall be
required for any massage establishment with a fixed place of business
providing out-call massage.
(Ord. 2856 § 1, 2015)
The provisions of this chapter shall not apply to the following:
A.
Treatment
or services administered or provided in good faith by healing arts
professionals who are duly licensed pursuant to the California Business
and Professions Code or any other law of the State of California,
including, but not limited to, physicians, surgeons, dentists, chiropractors,
osteopaths, podiatrists, acupuncturists, physical therapists, physician
assistants, or nurses, or by cosmetologists, barbers, estheticians,
or manicurists who are duly licensed pursuant to California Barbering
and Cosmetology Act, California Business and Professions Code Section
7300 et seq., while in the course of engaging in practices within
the scope of their respective professional licenses. This exemption
shall not be construed to apply or extend to treatments or services
constituting "massage," as defined in this chapter, that are administered
or provided by any person acting as an independent contractor to one
of the foregoing types of licensed professionals, if such person is
engaged in, or is purported to be engaged in, the business of massage.
B.
Chair
massages administered by fully clothed individuals to fully clothed
patrons in office or public locations.
C.
Hospitals,
nursing homes, sanatoriums, or other health facilities duly licensed
by the State of California, or activities engaged in by employees
of such facilities in the course of their employment while working
on the premises of such state-licensed facilities.
D.
The
activities of coaches or trainers employed by accredited junior high
schools, high schools, junior colleges, colleges, or universities,
while acting within the scope of such employment.
E.
Massage
therapy or health treatment involving massage provided by trainers
of amateur, semiprofessional, or professional athletes or athletic
teams, or at athletic facilities or events, while acting within the
scope of their employment, so long as such persons do not provide
massage services as their primary occupation at any location where
they provide such services within the City.
F.
Schools
of cosmetology or barbering which comply with the requirements of
California Business and Professions Code Section 7362 et seq., when
instructors are acting with the scope of their employment or when
students are working as unpaid externs pursuant to the requirements
of California Business and Professions Code Section 7395.1.
(Ord. 2856 § 1, 2015)
After an investigation, notice and opportunity to respond, an
operator's permit may be revoked or suspended by the Police Chief
where any of the following is found:
A.
The
business conducted is not substantially the same as that which was
permitted under the operator's permit.
B.
The
massage establishment is being operated in violation of any provision
of this chapter, Business and Professions Code Section 4600 et seq.,
or any other laws which would have been grounds for denial of the
operator's permit.
C.
The
applicant, owner, operator or manager has engaged in fraud, or made
a material omission or misrepresentation in obtaining or maintaining
an operator's permit.
D.
The
massage establishment has continued to operate after the applicable
operator's permit has been suspended.
E.
The
applicant, owner, operator, or manager of the massage establishment
has acted in a manner detrimental to the public health, safety or
welfare with regard to massage services.
(Ord. 2856 § 1, 2015)
A.
All
administrative hearings regarding a denial, nonrenewal, suspension,
or revocation of a massage establishment operator's permit shall occur
in accordance with this section.
B.
Upon
determining that grounds for denial, nonrenewal, revocation, or suspension
of an operator's permit exists, the Police Chief shall furnish written
notice of a denial, nonrenewal, or proposed revocation or suspension
of an operator's permit to the affected applicant or owner (hereinafter
the "appellant"). Such notice shall state the reasons for the denial,
nonrenewal or proposed revocation or suspension and shall state that
a written request for an administrative hearing may be filed within
15 calendar days of the date of the notice. The notice shall be personally
served, or sent by certified mail, postage prepaid, to the address
provided by the appellant and shall be mailed by the City within 24
hours of the date of the notice. In the case of a proposed suspension
or revocation of an operator's permit, the notice shall also be delivered
by posting the notice at the location of the massage establishment.
Any request for an administrative hearing shall be filed with the
City Clerk along with a filing fee, in an amount set by resolution
of the City Council, to defray the cost of such hearing. The request
along with the filing fee must be received by the City Clerk within
15 calendar days of the date of the City's notice or, if required,
the posting of the notice, whichever date is later. The written request
for an administrative hearing shall state in detail each basis on
which the request is made and include copies of all documents in support
of the appeal. If the request for a hearing is received by the City
Clerk within 15 calendar days of the later of the date of the notice
or, if required, the posting of the notice referred to herein, the
City Clerk shall transmit the request to the City Manager, and a hearing
shall be provided. If a written request is not received by the City
Clerk within such period, the Police Chief's action shall be deemed
to be the final decision.
C.
Upon timely receipt of a written request for an administrative hearing, the City Manager shall conduct a hearing. Absent a timely request by the appellant for a continuance, which request is granted, the City Manager shall conduct the hearing within 30 calendar days of the City's receipt of the request for the hearing. Notice of time and place of the hearing shall be given by personal service or via certified mail, postage prepaid, at least 15 calendar days in advance of the date set for the hearing. At the hearing, the appellant and the City shall be entitled to present relevant evidence and call witnesses who shall testify under oath and be subject to cross-examination. The scope of the hearing pursuant to this section shall be limited to those issues raised in writing by the appellant, as submitted pursuant to subsection B of this section. The City Manager shall not be bound by the statutory rules of evidence in the conduct of the hearing. Technical rules relating to evidence and witnesses shall not apply to hearings provided for in this chapter. Any relevant evidence may be admitted if it is material and of a type that is 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 testimony may be admissible and used for the purpose of supplementing or explaining any evidence given in direct examination, but shall not be sufficient in itself to support a finding unless such testimony would be admissible over objection in civil actions. The rules of privilege shall be applicable to the extent permitted in civil actions. Irrelevant, collateral, undue, and repetitious testimony shall be excluded.
D.
At the
conclusion of the hearing, the City Manager shall decide whether grounds
for denial, nonrenewal, revocation or suspension exist and shall uphold,
modify or overturn the decision of the Police Chief, stating factual
findings, and his or her conclusion. The decision of the City Manager
shall be final.
E.
In the
event that an operator's permit is suspended, revoked or expires,
the massage establishment shall surrender the operator's permit to
the Police Chief no later than the end of the third business day after
the suspension or revocation decision becomes final or the expiration
occurs.
(Ord. 2856 § 1, 2015)
Unless otherwise specifically provided by law, the burden of
proof shall be on the City in any administrative hearing under this
chapter to establish by a preponderance of the evidence that: (a)
an application for an operator's permit shall be denied; or (b) an
operator's permit shall be suspended, revoked, or not renewed.
(Ord. 2856 § 1, 2015)
In the event an operator's permit for a proposed or existing massage establishment is denied or revoked pursuant to this chapter, the owner or operator of such massage establishment may not resubmit an application for an operator's permit for a period of one year from the effective date of such denial or revocation, unless accompanied by sufficient evidence that the grounds for denial or revocation of the operator's permit no longer exist. For purposes of this section, the effective date of a denial or revocation of an operator's permit shall be the later of: (a) the date written notice of denial or revocation of the operator's permit by the Police Chief pursuant to Section 5.12.130(B) is deposited in the United States mail; or (b) the date of the decision of the City Manager following an administrative hearing pursuant to Section 5.12.130(D) becomes final.
(Ord. 2856 § 1, 2015)
Judicial review of any decision of the City Manager may be made pursuant to Section 1094.5 of the California Code of Civil Procedure only if the petition for writ of mandate is filed no later than the 90th day following the date on which the decision becomes final. If the date is not otherwise specified, the decision is final on the date it is made. In issuing a final decision, the City Manager shall provide notice to the appellant (as defined in Section 5.12.130) that the time within which judicial review must be sought is governed by Section 1094.6 of the California Code of Civil Procedure.
(Ord. 2856 § 1, 2015)
No refund or rebate of business licenses taxes shall be allowed
by reason of the fact that the massage establishment discontinues
an activity for which a business license tax is required, or because
the operator's permit is suspended or revoked.
(Ord. 2856 § 1, 2015)
B.
Injunctive relief may be instituted by the City Attorney, in addition to or separate from, criminal and/or administrative sanctions, pursuant to Garden Grove Municipal Code Section 1.04.090.
C.
In addition
to the above-described remedies, the City Council hereby authorizes
the following administrative abatement process with respect to massage
establishments conducted in violation of this chapter.
1.
The
City Council hereby finds and declares that the conducting of a massage
establishment in violation of any provision of this chapter to be
detrimental to the public health, safety, and general welfare of the
community, and therefore a public nuisance as defined by Civil Code
Section 3480.
2.
Whenever
the Police Chief determines that any massage establishment, premises
or property is operated in violation of any provision of this chapter,
the Police Chief may give notice to the responsible party stating
the violation of this chapter and the conditions that constitute a
public nuisance. The notice shall set a reasonable date, not less
than 10 business days from date of service, for a public hearing to
be held by the City Council as to why the business should not be closed,
or otherwise subjected to special conditions regarding further operation
of the business. The notice shall be personally served or mailed by
certified mail to the responsible party.
3.
After
the conduct of the hearing by the City Council, the City Council shall
make a determination as to whether a public nuisance exists. The City
Council may adopt an abatement order with written findings in support
of its determination. If a public nuisance finding is made, the City
Council shall issue an abatement order to close the business or otherwise
impose operating conditions on the business so as to bring the business
in compliance with this chapter. The order shall then be served by
first-class mail on the responsible party.
4.
If
such nuisance is not abated as directed in the abatement order, then
the City Attorney may file a civil action to enjoin further operation
of the business.
D.
Nothing
in this section shall preclude the City from pursuing any other legally
available enforcement remedies.
(Ord. 2856 § 1, 2015)
A.
The
Police Chief shall have the power and authority to promulgate rules,
regulations, and requirements consistent with the provisions of this
chapter and other law in connection with the issuance of an operator's
permit. The Police Chief may designate an employee of his or her department
to make decisions, investigate, or take any other action permitted
or required under this chapter.
B.
Pursuant
to California Business and Professions Code Section 4614(b), as it
may be amended from time to time, the Police Chief is authorized to
transmit to CAMTC copies of any final action of denial of an operator's
permit application, or revocation or suspension of an operator's permit
occurring pursuant to this chapter. The Police Chief is also authorized
to transmit information to CAMTC concerning: (1) any information related
to criminal activity or unprofessional conduct allegedly engaged in
by any certified massage practitioner or any other person providing
massage services in the City, including, but not limited to, police
reports and declarations of conduct.
(Ord. 2856 § 1, 2015)
