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:
"Acupressure"
means the act of applying manual pressure to parts of the
body with the intention of treating illness and/or disease or relieving
pain.
"Applicant"
means an applicant for an operator's permit.
"CAMTC"
means the California Massage Therapy 2Council, a non-profit
organization formed pursuant to California Business and Professions
Code Section 4600 et seq.
"City"
means the City of Garden Grove.
"Employee"
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.
"Manager"
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.
"Massage" or "massage services"
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.
"Massage establishment"
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.
"Operator's permit"
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.
"Out-call massage"
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.
"Owner" or "operator"
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.
"Person"
means any individual or combination of individuals, sole
proprietor, firm, association, partnership, corporation, limited liability
company, joint venture, or other entity.
"Police chief"
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.
"Sole provider"
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.
(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.
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.
|
(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)
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)