Note: Prior ordinance history: Ords. 645, 850, 880, 1000
and 1003.
It is the purpose and intent of this chapter to implement the
provisions of Business and Professions Code Section 4600 et seq.,
to provide for the orderly regulation of massage establishments and
massage technicians, as defined herein.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
For the purpose of this chapter, unless the context clearly
requires a different meaning, the words, terms and phrases hereafter
set forth have the meanings given them in this section:
means a massage establishment, including, but not limited
to, a sole proprietorship, where each person employed or retained
to practice massage therapy for compensation is a certified massage
technician.
means any individual certified by the California Massage
Therapy Council as a certified massage practitioner or as a certified
massage therapist pursuant to California Business and Professions
Code Section 4600 et seq.
shall mean the payment, loan, advance, donation, contribution,
deposit, or gift of money or anything of value.
shall mean any and all persons who may render any service
to the licensee, whether as an employee or an independent contractor,
and who receive compensation in any form from the licensee or his
or her agent, and who do not engage in any act of massage with the
patrons.
shall mean the business license issued by the city to operate
a massage establishment as required by this chapter.
shall mean any method of pressure on, or friction against,
or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating
the external parts of the human body with the hands or with the aid
of any mechanical electrical apparatus, or other appliances or devices,
with or without such supplementary aids as rubbing alcohol, liniment,
antiseptic, oil, powder, cream, lotion, ointment, or other similar
preparations commonly used in this practice. For purposes of this
chapter, the terms "massage" and "bodywork" shall have the same meaning.
shall mean any establishment having a fixed place of business
where any individual, firm, association, partnership, corporation,
joint venture, or combination of individuals, certified in accordance
with Sections 4600 through 4620 of the California Business and Professions
Code, engages in, conducts, carries on or permits to any of the above
to engage in, conduct or carry on, massage, or health treatments involving
massage, as the principal functions.
shall mean and include any of the following persons:
The sole proprietor of a sole proprietorship operating a massage
establishment;
Any general partner of a general or limited partnership that
owns a massage establishment;
Any person who has a five percent or greater ownership interest
in a corporation that owns a massage establishment;
Any person who is a member of a limited liability company that
owns a massage establishment;
All owners of any other type of business association that owns
a massage establishment.
shall mean a person who is certified by the California Massage
Therapy Council under Section 4604.2 of the California Business and
Professions Code, and who administers massage for compensation.
shall mean any person who is certified by the California
Massage Therapy Council under Section 4604 of the California Business
and Professions Code, and who administers massage for compensation.
means the individual who manages the massage establishment.
Evidence of management includes, 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.
An operator may also be an owner.
shall mean the California Massage Therapy Council created
pursuant to Sections 4600 through 4620 of the California Business
and Professions Code.
means the city manager or designee charged with the administration
of this chapter.
shall mean any individual, firm, association, partnership,
corporation, joint venture, or combination of individuals.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
It is unlawful for any person to engage in, conduct or carry
on, in or upon any premises within the city, the business of providing
massage in exchange for compensation after ninety days from the adoption
of this chapter, without being in possession of a duly issued and
currently valid massage practitioner or massage therapist certificate
issued by the California Massage Therapy Council in accordance with
Sections 4600 through 4620 of the California Business and Professions
Code.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
(a)
No
later than ninety days after adoption of this chapter, any certified
massage technician practicing massage for compensation within the
city shall be required to register with the permit authority as provided
in this section. There shall be no fee for the registration or any
amendment thereof.
(b)
The
registration application shall include the registrant's name, residence
address and telephone number, employer name, work address and telephone
number, and evidence of the registrant's current certification from
the California Massage Therapy Council as either a certified massage
practitioner or as a certified massage therapist pursuant to California
Business and Professions Code Section 4600 et seq.
(c)
The
city registration shall be renewed annually so long as the certified
massage technician is practicing massage therapy for compensation
within the city.
(d)
The
certified massage technician shall notify the city within thirty days
after any change in the registration information, including, but not
limited to, a change in work address.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
(a)
In addition to the requirements of Chapter 5.08 of this title, no later than ninety days after the adoption of this chapter, it is unlawful for any person or persons to own or operate a massage establishment within the city without first obtaining a business license pursuant to the requirements of this chapter.
(b)
On
and after March 1, 2012, it is unlawful for any massage establishment
operator within the city to employ or retain any person to practice
massage for compensation, or to allow any person to perform massage
for compensation on the premises of a massage establishment, unless
that person is a certified massage technician. For purposes of this
chapter, a massage establishment operator "employs or retains" a person
to practice massage for compensation when:
(1)
That person is a directly paid employee of the massage establishment;
or
(2)
That person's association with a massage establishment is that of
an independent contractor who receives compensation for massage therapy
provided to patrons of the massage establishment; or
(3)
That person receives a referral of patrons from the massage establishment
and, at any time before or after the referral, arranges in any way
for compensation to flow to the massage establishment operator (regardless
of whether the parties involved acknowledge that compensation is flowing
in exchange for the referral, or whether such parties record such
compensation in their financial records).
(c)
Application
for Massage Establishment Business License. All owners of a massage
establishment, or their duly authorized agent, shall file an application
for a business license for the massage establishment, on a form provided
by the permit authority. For purposes of this section, the "applicant"
for the certified massage establishment business license shall refer
to and include each and every owner of the massage establishment.
The application shall include the following information:
(1)
The name, address, and telephone number of the massage establishment;
(2)
The name, residence address and telephone number, and business address
and telephone number of the massage establishment owner(s) applying
for the certified massage establishment certificate;
(3)
The form of business under which the applicant will be conducting
the massage establishment, i.e., corporation, general or limited partnership,
limited liability company, or other form. If the applicant is a corporation,
the name of the corporation shall be set forth exactly as shown in
its articles of incorporation, together with the names and residence
addresses of each of its officers, directors, and each shareholder
holding more than ten percent of the stock of the corporation. If
the applicant is a general or limited partnership, the application
shall set forth the name and residence address of each of the partners,
including limited partners. If one or more of the partners is a corporation,
the provisions of this section pertaining to a corporate applicant
shall apply. If the applicant is a limited liability company, the
application shall set forth the name and residence address of each
of the members. If one or more of the members is a partnership, limited
liability company, or corporation, the provisions of this section
pertaining to a partnership, limited liability company, or corporate
applicant shall apply, as applicable;
(4)
The name and address of the owner of the real property upon, in,
or from which the certified massage establishment is to be operated.
In the event the applicant is not the legal owner of the property,
the application shall be accompanied by a copy of any written lease
between the applicant and the property owner authorizing use of the
premises for a massage establishment, or, alternatively, if there
is no written lease, then a written, notarized acknowledgment from
the property owner that the property owner has been advised that a
massage establishment will be operated by the applicant upon, in,
or from the property owner's property;
(5)
A description of the proposed massage establishment, including the
type of treatments to be administered;
(6)
A list of all persons that will perform massage for compensation
at the massage establishment, and for each such person, a copy of
that person's current certification from the California Massage Therapy
Council as a certified massage practitioner or as a certified massage
therapist and a copy of that person's California Massage Therapy Council-issued
identification card;
(7)
For each owner who is not a certified massage technician, fingerprints
in the manner required under Business and Professions Code Section
4601.3 for purposes of conducting a background check in the manner
provided under the above-referenced Business and Professions Code
section, which includes submission of the fingerprints to the California
Department of Justice. Such applicants shall also submit along with
their application the cost of fingerprinting and the background check.
(d)
Criteria
for Granting or Denying Massage Establishment Business License. Following
an inspection by the police department of the proposed massage establishment
and its premises, the permit authority shall grant a business license
for the massage establishment if the applicant and the massage establishment
have satisfied the requirements of this section and all other applicable
laws including, but not limited to, the city's building, zoning, and
health regulations, unless the permit authority determines any one
or more of the following to be true:
(1)
The applicant, any owner of the proposed massage establishment, or
shareholder, partner, or member of the applicant, within five years
immediately preceding the date of filing of the application, has been
convicted in a court of competent jurisdiction of any offense that
relates directly to the operation of a massage establishment whether
as a massage establishment owner or operator or as a person providing
massage for compensation, or as an employee of either; or has at any
time been convicted in a court of competent jurisdiction of any felony
the commission of which occurred on the premises of a massage establishment;
or
(2)
The applicant or any shareholder, partner, or member of the applicant
is currently required to register under the provisions of Section
290 of the California Penal Code; or
(3)
The applicant, or any shareholder, partner, or member of the applicant,
within five years of the date of application, has been convicted in
a court of competent jurisdiction of any violation of Section 266,
266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or
653.22 of the California Penal Code, or conspiracy or attempt to commit
any such offense, or any offense in a jurisdiction outside of the
state of California that is the equivalent of any of the aforesaid
offenses; or
(4)
The applicant, or any shareholder, partner, or member of the applicant,
has been subjected to a permanent injunction against the conducting
or maintaining of a nuisance pursuant to Sections 11225 through 11235
of the California Penal Code, or any similar provision of law in a
jurisdiction outside the state of California; or
(5)
The applicant, or any shareholder, partner, or member of the applicant,
has knowingly made a false statement or omission of a material fact
in the application for the permit; or
(6)
The applicant, if an individual, has not attained the age of eighteen
years; or
(7)
The applicant, or any shareholder, partner, or member of the applicant,
within five years of the date of application, and as established by
clear and convincing evidence, has engaged in acts prohibited under
California Penal Code Section 266, 266a, 266e, 266f, 266g, 266h, 266i,
266j, 315, 316, 318, 647(b), or 653.22; or
(8)
The applicant, or any shareholder, partner, or member of the applicant,
within five years immediately preceding the date of filing of the
application, has had a permit or license to practice massage for compensation
or to own and/or operate a massage establishment revoked or denied
in any jurisdiction.
(9)
The proposed location of the massage establishment is within one
thousand feet of an existing massage establishment and the permit
authority determines, in his or her sole discretion, that the massage
establishment business license should be denied in order to prevent
over concentration of such establishments.
(e)
Massage
Establishment Business License—Issuance—Notice to Property
Owner.
(1)
The permit authority shall grant a business license to an applicant
who has satisfied the requirements of this section and all other applicable
laws, including, but not limited to, the city's building, zoning,
and health regulations.
(2)
Where the applicant is not the record owner, as shown on the latest
county assessment roll, of the property upon, in, or from which the
certified massage establishment is to be operated, then upon issuance
of a business license, the permit authority may send a written notice
to the property owner advising of the issuance of the business license
and of the regulations applicable to the massage establishment and
the property pursuant to this chapter. Any other notices sent to the
applicant pursuant to this chapter at any time before or after issuance
of the business license may also be sent to the property owner.
(f)
Notice of Denial—Appeal. If an application for a business license is denied, the permit authority shall serve on the applicant a written notice of denial which shall specify the grounds for the denial. The applicant shall be permitted to appeal the determination in accordance with Chapter 2.02 of this code.
(g)
Display
of Business License. Each holder of a business license shall display
that business license in an open and conspicuous place on the premises
visible from the entrance and/or reception and waiting area of the
massage establishment.
(h)
Term.
A business license issued pursuant to the terms of this chapter shall
be valid for a term of one year from the date of issuance, and, unless
suspended or revoked, shall be renewed annually so long as the massage
establishment is operating within the city.
(i)
Requirement
to Amend Business License Application. Whenever the information provided
in the application for certified massage establishment on file with
the city changes, for example by a change in persons providing massage
for compensation, the operator shall, within ten business days after
such change, file an amendment to the certified massage establishment
application with the permit authority to reflect such change.
(j)
Violations—Operator
Responsibility—Suspension or Revocation of Certified Massage
Establishment Business License.
(1)
For the purpose of enforcing the requirements of this chapter, the
massage establishment operator shall be responsible for the conduct
of all massage establishment employees, agents, independent contractors,
or other representatives while such persons are on the premises of
the massage establishment or providing outcall massage services on
behalf of the massage establishment.
(2)
In addition to any other remedy available to the city under this code or state law, a certified massage establishment business license may be suspended or revoked by the permit authority as provided in Sections 5.61.100 through 5.61.110. Upon revocation of a business license, the massage establishment shall immediately cease operation, and, if so ordered by the permit authority, no other massage establishment shall be permitted to operate at that location by any person for a period of not less than one year. If the operator is not also the legal owner of the real property on which the massage establishment is situated, notice of such revocation and the one-year prohibition shall be provided by the permit authority to the owner of record of the property as shown on the latest county assessment roll.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
(a)
The
city police officers, the permit authority and their designees shall
have the right to enter any massage establishment during regular business
hours, in accordance with applicable laws, to make reasonable inspection
to ascertain whether there is compliance with the provisions of this
chapter.
(b)
The
massage establishment operator shall take immediate action to correct
each violation noted as a result of the inspection. A re-inspection
will be performed within thirty days to ensure that each violation
noted by the inspector has been corrected.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
(a)
Operational
Requirements. Except as otherwise specifically provided in this chapter,
no later than ninety days after the adoption of this chapter, the
following operational requirements shall be applicable to all massage
establishments located within the city:
(1)
The hours of operation of the massage establishment shall be displayed
in a conspicuous public place in the reception area and in any front
window clearly visible from outside of the massage establishment.
(2)
Patrons and visitors shall be permitted in the massage establishment
only during the hours of operation.
(3)
Except for a patron who is inside a massage therapy room for the
purpose of receiving a massage, no patrons or visitors shall be permitted
in or on the massage establishment premises at any time who are less
than fully clothed in outer garments of nontransparent material, or
who display or expose themselves in underclothing or similar intimate
apparel.
(4)
During the hours of operation, visitors shall not be permitted in
massage therapy rooms except as follows: (A) the parents or guardian
of a patron who is a minor child may be present in the massage therapy
room with that minor child; (B) the minor child of a patron may be
present in the massage therapy room with the patron when necessary
for the supervision of the child; and (C) the conservator, aid, or
other caretaker of a patron who is elderly or disabled may be present
in the massage therapy room with that elderly or disabled person.
(5)
During the hours of operation, patrons shall be permitted in massage
therapy rooms only if at least one duly authorized certified massage
technician is present on the premises of the massage establishment.
(6)
A list of services available and the cost of such services shall
be posted in an open and conspicuous public place on the premises,
or provided to patrons before services are rendered. The services
shall be described in English and may also be described in such other
languages as may be convenient. No massage establishment operator
shall permit, and no person employed or retained by the massage establishment
shall offer to perform, any services or fees other than those posted.
(7)
Massages shall only be allowed in designated massage rooms.
(8)
No massage establishment owner, operator, manager, employee or independent
contractor shall place, publish or distribute, or cause or allow to
be placed, published or distributed, any advertising matter that would
reasonably suggest to prospective patrons that any service is available
unless such service is listed on the massage establishment's list
of available services required by this chapter to be posted on the
premises.
(9)
No sexually oriented material or sexually oriented merchandise may
be allowed, displayed or stored anywhere on a massage establishment's
premises.
(10)
No alcoholic beverage or drug, other than a prescription medication
in the possession of the person for whom the prescription was written,
and no condoms, shall be stored or allowed on a massage establishment's
premises. Service of alcoholic beverages shall not be permitted.
(11)
No person shall enter or remain on any part of the premises of a
massage establishment, and no person shall conduct, operate, be employed
by or provide massage, while in the possession of, while consuming,
or while under the influence of any alcoholic beverage or drug, except
for medication provided pursuant to a valid prescription issued by
a physician duly licensed to practice in the state of California.
(12)
No massage establishment shall have installed or utilize any signaling
devices of any type to alert employees and/or patrons to the presence
of law enforcement or other persons charged with enforcement of the
provisions of this code and/or other applicable laws and regulations.
(13)
No person shall reside, dwell, occupy or live inside, or be allowed
to reside, dwell, occupy or live inside, a massage establishment at
any time.
(14)
Massage establishments shall be operated in compliance with all applicable
laws and regulations, including without limitation, the California
Massage Therapy Act (Business and Professions Code Section 4600 et
seq.).
(b)
Physical
Facility and Building and Fire Code Requirements. Except as otherwise
specifically provided in this chapter, on and after March 1, 2012,
the following physical facility and building code requirements shall
be applicable to all massage establishments located within the city:
(1)
No locking mechanism shall be installed on any interior door that
would impede inspection to massage treatment rooms, including, but
not limited to, a locking mechanism on any treatment room door, unless
there is no person on staff who is available to assure the security
for clients and massage staff who are behind closed doors. For the
purpose of this chapter, a staff member is available to assure the
security of clients and massage staff when the massage establishment
employs a receptionist or other person who is stationed in a public
location outside of the massage treatment rooms.
(2)
A massage table shall be used for all massage therapy, with the exception
of "Thai," "Shiatsu," and similar forms of massage therapy, which
may be provided on a padded mat on the floor, provided the patron
is fully attired in loose clothing, pajamas, scrubs, or similar style
of garment. Massage tables shall have a minimum height of eighteen
inches. Beds, floor mattresses, and waterbeds are not permitted on
the premises of the massage establishment, and no massage establishment
shall be used for residential or sleeping purposes.
(3)
All locker facilities that are provided for the use of patrons shall
be fully secured for the protection of the patrons' valuables, and
each patron shall be given control of the key or other means of access.
(4)
The massage establishment shall comply with all applicable state
and local building standards (as adopted in Title 14 of this code)
and the fire code (as adopted in Title 15 of this code).
(5)
One front door that enters into the lobby and/or other waiting room
of the establishment shall be provided for customer use. All customers
and any other persons other than employees of the establishment shall
be required to enter and exit through the establishment's front door.
(6)
No massage establishment shall be equipped with tinted or "one-way"
glass in any room or office; and/or a door-viewer or peephole designed
to look through a door or wall.
(c)
Additional
Health and Safety Requirements. Except as otherwise specifically provided
in this chapter, no later than ninety days after adoption of this
chapter, the following health and safety requirements shall be applicable
to all massage establishments located within the city:
(1)
The massage establishment shall at all times be equipped with an
adequate supply of clean sanitary towels, coverings, and linens, and
all massage tables shall be covered with a clean sheet or other clean
covering for each patron. After a towel, covering, or linen has been
used once, it shall be deposited in a closed receptacle and not used
again until properly laundered and sanitized. Towels, coverings, and
linens shall be laundered either by regular commercial laundering,
or by a noncommercial laundering process that includes immersion in
water at least one hundred forty degrees Fahrenheit for not less than
fifteen minutes during the washing or rinsing operation. Clean towels,
coverings, and linens shall be stored in closed, clean cabinets when
not in use.
(2)
All massage therapy rooms or cubicles, wet and dry heat rooms, toilet
rooms, shower compartments, hot tubs, and pools shall be thoroughly
cleaned and disinfected as needed, and at least once each business
day when the premises are open and such facilities are in use. All
bathtubs shall be thoroughly cleaned and disinfected after each use.
(3)
All liquids, creams, or other preparations used on or made available
to patrons shall be kept in clean and closed containers. Powders may
be kept in clean shakers. All bottles and containers shall be distinctly
and correctly labeled to disclose their contents. When only a portion
of a liquid, cream, or other preparation is to be used on or made
available to a patron, it shall be removed from the container in such
a way as not to contaminate the remaining portion.
(4)
No invasive procedures shall be performed on any patron. Invasive
procedures include, but are not limited to: (A) application of electricity
that contracts the muscle; (B) penetration of the skin by metal needles;
(C) abrasion of the skin below the nonliving, epidermal layers; (D)
removal of skin by means of any razor-edged instrument or other device
or tool; (E) use of any needle-like instrument for the purpose of
extracting skin blemishes; and (F) other similar procedures.
(5)
All bathrobes, bathing suits, and/or other garments that are provided
for the use of patrons shall be either fully disposable and not used
by more than one patron, or shall be laundered after each use pursuant
to subsection (c)(1) of this section.
(6)
All combs, brushes, and/or other personal items of grooming or hygiene
that are provided for the use of patrons shall be either fully disposable
and not used by more than one patron, or shall be fully disinfected
after each use.
(7)
No patrons shall be allowed to use any shower facilities of the massage
establishment unless such patrons are wearing slip-resistant sandals
or flip-flops while in the shower compartment. All footwear such as
sandals or flip-flops that are provided for the use of patrons either
shall be fully disposable and not used by more than one patron, or
shall be fully disinfected after each use.
(8)
The patron's genitals, pubic area, anus, and areola must be fully
draped at all times while any individual employed or retained by the
massage establishment to practice massage for compensation, or any
other employee or operator of the massage establishment, is in the
massage therapy room or cubicle with the patron. No massage therapy
shall be provided to a patron that results in intentional contact,
or occasional and repetitive contact, with the genitals, pubic area,
anus, or areola of a patron.
(d)
Attire
and Physical Hygiene Requirements. No later than ninety days after
adoption of this chapter, the following attire and physical hygiene
requirements shall be applicable to all employees, and any other persons
who work permanently or temporarily on the premises, of a massage
establishment within the city, including, but not limited to, all
persons who are employed or retained to practice massage for the massage
establishment:
(1)
All persons shall wear clean and sanitary outer garments at all times.
All garments worn shall comply with the standards set forth in applicable
state law and regulations.
(2)
No massage establishment operator, employee, or visitor shall, while
on the premises of a massage establishment or while performing any
outcall massage service, and while in the presence of any patron,
customer, employee or visitor, expose his or her genitals, buttocks,
or chest.
(3)
All persons shall thoroughly wash their hands with soap and water
or any equally effective cleansing agent immediately before providing
massage therapy to a patron. No massage therapy shall be provided
upon a surface of the skin or scalp of a patron where such skin is
inflamed, broken (e.g., abraded or cut), or where a skin infection
or eruption is present.
(e)
Display
of Permit and Certifications. Each employee who performs massage therapy
in or on the premises or through an outcall massage service shall
display on his or her person a copy of the valid photograph-bearing
identification card issued to that employee by the California Massage
Therapy Council pursuant to Business and Professions Code Section
4600 et seq. A copy of each such identification card shall also be
displayed in an open and conspicuous place visible from the entrance
and/or reception and waiting area of the massage establishment. The
home address of any employee need not be displayed.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
No person permitted to operate a massage establishment under
this chapter shall operate under any name or conduct business under
any designation not specified in the business license. Upon a change
of location of a massage establishment where there is no change of
massage establishment owner(s), an application for an amended business
license shall be made to the permit authority, and such application
shall be granted, provided all applicable provisions of this code
are complied with as to the new location.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
Upon a sale or transfer of any massage establishment, or upon
the sale or transfer of some or all of the interest of any massage
establishment to a person who is not already an owner of the massage
establishment, a new business license shall be required.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
Any business license issued pursuant to this chapter may be
suspended or revoked by the city after a hearing, where it is found
by clear and convincing evidence that any of the following have occurred:
(a)
The
person(s) to whom the certified massage establishment business license
has been issued, or any person employed or retained by the massage
establishment, has been found to have violated any provision of this
chapter; or
(b)
Any
owner of a massage establishment which is operating pursuant to a
certified massage establishment business license is no longer qualified
as a certified massage technician for any reason; or
(c)
The
business license holder or employee of the massage establishment has
been convicted in a court of competent jurisdiction of having violated,
or has engaged in conduct constituting a violation of, any of the
following: California Penal Code Section 266, 266a, 266e, 266f, 266g,
266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22, or conspiracy
or attempt to commit any such offense, or any offense in a jurisdiction
outside of the state of California that is the equivalent of any of
the aforesaid offenses; or
(d)
The
holder of the certified massage establishment business license or
any employee of the massage establishment is required to register
under Section 290 of the California Penal Code; or
(e)
The
holder of the certified massage establishment business license has
been subject to a permanent injunction against the conducting or maintaining
of a nuisance pursuant to this code, or Sections 11225 through 11235
of the California Penal Code, or any similar provision of law in any
jurisdiction outside the state of California; or
(f)
The
holder of the certified massage establishment business license or
any employee of the massage establishment has engaged in fraud or
misrepresentation or has knowingly made a misstatement of material
fact while working in or for the massage establishment; or
(g)
The
holder of the certified massage establishment business license has
continued to operate the massage establishment or permit massage to
be performed for compensation on the premises after the certified
massage establishment business license has been suspended or revoked;
or
(h)
Massage
treatments are or have been performed on the premises of the massage
establishment, with or without the holder's actual knowledge, by any
person who is not a duly authorized certified massage technician;
or
(i)
There
have been one or more acts prohibited under California Penal Code
Sections 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316,
318, 647(b), or 653.22 taking place on the premises of the massage
establishment, whether or not any criminal prosecution has been pursued
or conviction obtained for such acts, and whether or not they occurred
with or without the actual knowledge of the holder of the certified
massage establishment business license; or
(j)
The
holder of the certified massage establishment business license or
any employee of the massage establishment or any other person on the
premises of the massage establishment has engaged in conduct or committed
acts that a reasonable person in the patron's position would understand
as an offer to perform on or engage in with the patron acts that are
sexual in nature or that involve touching of the patron's genitals,
pubic area, anus, and/or areola.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
(a)
Written
Notice Required. The permit authority or designee shall before revoking
or suspending any certified massage establishment business license,
give the licensee at least ten days' written notice of the alleged
grounds for revocation or suspension. The licensee may request a hearing
as provided in this chapter during that ten-day period. If no hearing
is requested, the determination of the permit authority shall become
final.
(b)
Hearing. The licensee shall be notified of the date and time of the hearing in writing at least ten days prior to the hearing. The city manager shall appoint a hearing officer, who shall not be on the staff of the permit authority. The city and the licensee shall be permitted to be represented by counsel, and introduce both testamentary and documentary evidence. The hearing officer shall consider all relevant and proper evidence at the hearing. The hearing may, after being commenced within the time specified pursuant to subsection (a) of this section, be continued for good cause by the hearing officer from time to time. The hearing officer shall, at the conclusion of the hearing, make findings of fact based upon the evidence submitted and shall decide whether or not the business license shall be revoked or suspended.
(c)
Notice
of Decision. The hearing officer's written notice of decision shall
be served on the licensee, within thirty days of the conclusion of
the hearing, by first class mail.
(d)
Judicial
Review. The written decision of the administrative hearing officer
shall be final and shall be subject to judicial review according to
the provisions and time limits set forth in Code of Civil Procedure
Section 1094.6.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
This chapter shall not apply to the following classes of individuals
while engaged in the performance of the duties of their respective
professions:
(a)
Physicians,
surgeons, chiropractors, osteopaths or physical therapists who are
duly licensed to practice their respective professions in the state
of California;
(b)
Nurses
registered under the laws of the state of California;
(c)
Trainers
of any amateur, semi-professional or professional athlete or athletic
team;
(d)
Barbers
and beauticians who are duly licensed under the laws of the state
of California when engaged in such practice within the scope of their
employment;
(e)
Hospitals,
nursing homes, sanatoriums, or other health care facilities duly licensed
by the state of California; provided that at all times such physicians,
surgeons, chiropractors, osteopaths and physical therapists are acting
in adherence with the provisions of the state law that govern massage;
(f)
Accredited
high schools and colleges and coaches and trainers therein while acting
within the scope of their employment; and
(g)
Physical
therapy students and massage therapy students, enrolled in a state
approved educational program earning practical hours for school/education,
may provide massage under the direct supervision of a state-certified,
city-licensed physical therapist or massage therapist at all times
when a student performs massage for educational purposes.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
Any massage establishment operated, conducted or maintained
contrary to the provisions of this chapter shall be, and the same
is hereby declared to be, unlawful and a public nuisance, and the
city attorney may, in addition to or in lieu of prosecuting a criminal
action hereunder, commence an action or actions, proceeding or proceedings,
for the abatement, removal or enjoinment thereof, in the manner provided
by law; and shall be authorized to take such other steps and to apply
to such court or courts as may have jurisdiction to grant such relief
as will abate or remove such massage establishment and restrain and
enjoin any person from operating, conducting or maintaining such establishment
contrary to the provisions of this chapter. If the city prevails in
any criminal or civil action to administer or enforce this chapter,
including, but not limited to, the abatement and/or enjoinment of
nuisances, the city shall be entitled to recover, in addition to any
fines, damages, injunction or other relief, its reasonable costs and
expenses, including without limitation its expert witness fees and
reasonable attorney's fees, to the fullest extent allowable under
law.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
Chapter 5.08 of this title shall apply to the subject matter of this chapter in all respects, including those not specifically mentioned in this chapter.
(Ord. 1560 § 1, 2012; Ord. 1615 § 1, 2016)
