Note: Prior history: Prior code §§ 2.41
and 12.42 as amended by Ord. Nos. 76-4, 84-4, 85-5, 94-9, 98-15, and
09-18.
The requirements and restrictions imposed by this chapter are
reasonably necessary to protect the health, safety and welfare of
the citizens of the City of Claremont.
A.
The
City of Claremont is authorized, by virtue of the State Constitution,
and Section 51031 of the Government Code, to regulate massage establishments
by imposing reasonable standards relative to the skill and experience
of massage operators and massage technicians and reasonable conditions
on the operations of the massage establishment.
B.
There
is a significant risk of injury to massage clients by improperly trained
and/or educated massage technicians and this chapter provides reasonable
safeguards against injury and economic loss.
C.
The
establishment of reasonable standards for massage establishments serves
to reduce the risk of illegal activity.
(15-10)
For the purpose of this chapter, unless the context clearly
requires otherwise, the words and phrases defined in this section
shall have the following meanings:
means a person employed by a massage establishment or business
to provide massage services.
means the massage therapy organization authorized to issue
certifications pursuant to the California Business and Professions
Code (commencing with Section 4600, as amended).
means the Chief of Police for the City of Claremont.
means a guilty plea or verdict, or a conviction following
a plea of nolo contendere, where the time for appeal has elapsed or
the judgment of conviction has been affirmed on appeal, irrespective
of an order granting probation following that conviction, suspending
the imposition of sentence, or of a subsequent order under Section
1203.4 of the Penal Code allowing the applicant to withdraw his or
her plea of guilty and to enter a plea of not guilty, or dismissing
the accusation or information.
means the occurrence of any of the following events within 10 years immediately preceding the date of filing of the application in question or, in the case of non-renewal, revocation or suspension proceedings, within 10 years of the date of notice of hearing pursuant to Section 5.36.120 (Notice of revocation or non-renewal):
A conviction in a court of competent jurisdiction of any of
the following:
Any infraction, misdemeanor or felony offense which relates
directly to the operation of a massage establishment, or during the
performance of a massage, whether as a massage establishment owner
or operator, or as a massage technician or massage practitioner;
Any felony, the commission of which occurred on the premises
of a massage establishment;
A violation of any provision of law pursuant to which a person
is required to register under the provisions of Penal Code Section
290, or conduct in violation of Penal Code Section 266h, 266i, 311.6,
314, 315, 316, 318, 415, subsections (a), (b) or (d) of Penal Code
Section 647, or an attempt to commit or conspiracy to commit any of
the above-mentioned offenses, or any other crime involving dishonesty,
fraud, deceit, or moral turpitude or when the prosecution accepted
a plea of guilty or nolo contendere to a charge of a violation of
Penal Code Section 415, 602 or any lesser included or related offense,
in satisfaction of, or as a substitute for, any of the previously
listed crimes, or any crime committed while engaged in the ownership
of a massage establishment or the practice of massage;
A violation of Health and Safety Code Section 11550 or any offense
involving the illegal sale, distribution or possession of a controlled
substance specified in the California Health and Safety Code Section
11054, 11055, 11056, 11057 or 11058;
Any lesser-included offense of any of the aforesaid offenses;
and
Any offense in a jurisdiction outside the State of California,
which is the equivalent of any of the aforesaid offenses.
For purposes of considering whether to renew or revoke a license,
the licensee engaging in or committing any of the conduct described
in California Penal Code Sections 266h, 266i, 314, 315, 316, 318,
subsections (a), (b) or (d) of Penal Code Section 647, or Government
Code Section 51032.
The requirement to register under the provisions of California
Penal Code Section 290.
Becoming subject to a permanent injunction against the conducting
or maintaining of a nuisance pursuant to California Penal Code Sections
11225 through 11235, or any similar provisions of law in a jurisdiction
outside the State of California.
Becoming subject to a permanent injunction against the conducting
or maintaining of a nuisance pursuant to California Health and Safety
Code Sections 11570 through 11587, or any similar provisions in a
jurisdiction outside the State of California.
The denial, non-renewal, suspension, or revocation of any license
or permit issued by any state, county, city, or other local government
within the United States for the operation of a massage establishment
or for the performance of massages, except that denial of license
or permit for the operation of a massage establishment shall not be
considered if the sole basis for the denial was the prohibition of
the use within the zoning or planning district in which the use was
proposed to be located.
Touching the genitals, pubic regions, anuses, or female breasts
below a point immediately above the top of the areolas, whether or
not the same are covered, of oneself or of another person while providing
massage services or while within view of a customer or patron of the
massage establishment.
Exposing the genitals, pubic regions, anuses, or female breasts
below a point immediately above the top of the areola of oneself or
of another person to view while providing massage services or while
within view of a customer or patron of the massage establishment.
means any owner, partner, manager, supervisor, and worker,
whether paid or not, who renders personal services in any nature in
the operation of a massage establishment.
means a person appointed by the City Manager or his/her designee
to determine the validity of an appeal related to a City action on
a massage establishment license or massage technician permit.
means a person who works freelance at a business or is self-employed.
means the person(s) listed on the massage establishment business license or any writing submitted to the City of Claremont pursuant to Section 5.36.070(W) of this chapter to act as the representative and agent of the operator in managing day-to-day operations with the same liabilities and responsibilities. Evidence of management could 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, rules or purchase supplies. A manager may also be an owner.
means the scientific manipulation of the soft tissues or
as otherwise defined in Division 2 Chapter 10.5 of the Business and
Professions Code. "Massage certificate" means a certificate issued
pursuant to Section 4604 of the Business and Professions Code (Chapter
10.5 commencing with Section 4600, as amended).
means any establishment having a fixed place of business
where any individual, person, firm, association, partnership, corporation,
joint venture, limited liability company, or combination of individuals
that engages in, conducts, carries on, or permits to be engaged in,
conducted, or carried on for consideration, massages, baths, or health
treatments involving massages or baths as regular functions.
means a person who is certified by the CAMTC under Section
4604 of the California Business and Professions Code administering
massage for compensation.
means any of the following:
Any person who administers to any person, for any form of consideration or gratuity, a "massage," "massage services," or "massage therapy" as defined in Section 5.36.020 of this chapter. A "massage technician" also includes a student at an approved school performing massage, massage services, or massage therapy to any person who pays for or gives a gratuity for such, whether the payment or gratuity is to such school or to the school. As used in this chapter, approved school means any school or institution of learning approved pursuant to Division 2, Chapter 10.5 of the Business and Professions Code; or
A massage therapist or massage practitioner who is certified
by the CAMTC pursuant to section 4604 of the Business and Professions
Code, and who administers massage for compensation.
means any business where the services are provided at a location
other than the premises listed on the application.
means a place which provides an unobstructed view of the
requisite information upon first entering the massage establishment
or room.
means all persons who have an ownership interest in the massage
establishment and/or a person who is responsible for its day-to-day
operations.
means any individual, firm, corporation, partnership, association,
or other group or combination of individuals acting as an entity.
means the City of Claremont Police Department.
as used in this chapter, means a massage establishment where
the owner owns 100% of the business and is the only person who provides
massage services for compensation pursuant to a valid and active CAMTC
certificate. A sole proprietor has no employees or independent contractors
providing massage services.
(15-10; 21-06)
A.
Exemptions.
This chapter shall not apply to the following classes of individuals,
and the individuals shall be exempt from massage technician, practitioner,
and establishment requirements while engaged in the performance of
the duties of their respective professions:
1.
Physicians,
surgeons, chiropractors, acupuncturists, or osteopaths ("professionals")
duly licensed to practice their respective professions in the State
of California under the provisions of the Business and Professions
Code, while performing activities encompassed by such professional
licenses.
If the professional's facility is used for the purpose of nonmedical massage, the facility itself must be licensed as a massage establishment pursuant to this chapter and subject to the land use regulations in Title 16 of the Municipal Code;
2.
Registered
nurses, licensed vocational nurses or physical therapists duly licensed
to practice their professions in the State of California under the
provisions of the Business and Professions Code, while performing
activities encompassed by their respective licenses;
3.
Other
health care personnel engaged in the healing arts as regulated and
licensed by Division 2 of the Business and Professions Code;
4.
Barbers,
cosmetologists, estheticians, and manicurists duly licensed by the
State of California while performing activities encompassed by their
respective licenses, except that this exemption applies solely for
the massaging of the neck, face, and/or scalp of the customer or client
of a barber, cosmetologist, or esthetician, or in the case of a licensed
manicurist, the massaging of the forearm, hands, calves, and/or feet;
5.
Coaches
and trainers employed by accredited high schools, community colleges,
or universities while acting within the scope of their employment,
as well as trainers of amateur, semi-professional, or professional
athletes or athletic teams while acting in that capacity;
6.
Individuals
practicing reflexology whose practices are limited to alternating
pressure applied to the reflexes within the reflex maps of the body
located on the feet, hands, and outer ears; and
7.
A
massage establishment shall not include a business with a valid City-issued,
non-massage establishment business license where physical therapy
is performed if the massage is solely for physical therapy purposes
when physical therapy is a permitted use, contained to one room, and
directly tied to, without any independent business derived solely
for massage purposes, the physical therapy business.
B.
Exception.
Individuals administering massages or health treatment involving massages
to persons participating in road races, track meets, triathlons, and
similar athletic, recreational events, or City-approved events shall
be exempt from the provisions of this chapter, provided, that all
of the following conditions are met:
1.
The
massage services are made available to participants in the event.
2.
The
event is open to participation by the general public or a significant
segment of the public such as employees of sponsoring or participating
corporations, students from the participating schools, members of
participating organizations, etc.
3.
The
massage services are provided at the site of the event and either
during, immediately preceding, or immediately following the event.
4.
The
sponsors of the event have been advised of and have approved the provision
of massage services.
5.
The
persons providing the massage services are not the primary sponsors
of the event.
(15-10)
No massage regulated by this chapter shall be performed at a
place or location other than at premises for which a valid massage
establishment license has been obtained pursuant to this chapter,
except in the following circumstances:
A.
A CAMTC certified massage therapist may perform massage in conjunction with a valid home occupation permit pursuant to Chapter 16.327; or
B.
Massage may be performed at premises expressly exempted or excepted by Section 5.36.030 (Exemptions and exceptions), provided the massage is performed by a person exempt under Section 5.36.030(A) or a massage technician having a valid license pursuant to this chapter; and
C.
A massage
technician may perform massages at a place or location other than
at premises for which a valid business license has been obtained under
this chapter, and other than as provided in subsection (A)(1) hereof,
only when:
1.
Such
massage is specifically prescribed in writing by a physician, surgeon,
chiropractor, or osteopath duly licensed to practice in the State
of California. No additional massage services shall be performed for
any patron beyond that service which is specifically described in
the writing whether or not such patron desires any additional service
to be performed, and
2.
Only
if the massage technician has the required education for a therapist
license or holds a massage certificate, and only if that person also
has certified proof of three or more years of massage therapy experience.
(15-10; 21-06)
Permit Required. It is unlawful, and a misdemeanor, for any
person to perform or administer a massage without a certificate issued
pursuant to Section 4604 of the Business and Professions Code (Chapter
10.5 commencing with Section 4600, as amended).
(15-10; 21-06)
Business License Required. It is unlawful and a misdemeanor subject to punishment in accordance with Section 1.12.010 et seq. of this Code (Violations of the Municipal Code), for any person to own, operate, manage, engage in, or permit to be conducted or carried on, in or upon any premises within the City, a massage establishment or business without a valid City of Claremont business license pursuant to Chapter 5.20 and Section 4.06.020 of this Code. Sole Proprietors must possess both a massage establishment business license and a "massage technician" license.
(15-10; 21-06)
No person shall engage in, conduct or carry on, or permit to
be engaged in, conducted or carried on, any massage establishment
or business, unless each of the following requirements are met:
A.
Massage
operation shall be conducted within a structure located in a zone
where such use is permitted.
B.
No operator/owner
or manager shall employ any person as a massage technician who does
not have a valid massage certificate required pursuant to this chapter.
The operator/owner and/or the manager shall file copies or other evidence
of the certificates or permits held by the persons who are providing
massage services at the business with the City of Claremont Finance
Department, to be maintained with the business license records, within
10 calendar days of the start of employment or services.
C.
Massage establishments may be open for business only between the hours of 8:00 a.m. and 10:00 p.m. Administrative or other services for the business may extend beyond the hours of the massage business (primary or ancillary). A massage that begins any time before 10:00 p.m. must terminate no later than 10:00 p.m. The responsible manager(s), as listed on the business license application or any subsequent writing submitted to the City of Claremont pursuant to subsection V of this section, shall be on the premises at all times when the business is open. The responsible manager on the premises and operator/owner shall be responsible for a violation of this subsection. The hours of operation must be clearly displayed within a common area of the facility, or may be displayed as a form of window signage in compliance with the City of Claremont Municipal Code.
D.
A list
of massage services available at the massage establishment and the
cost of such services shall be clearly posted, in the English language,
in an open and conspicuous place in the lobby area of the business.
The posted services must be listed in large enough print to be read
with the naked eye. No services shall be offered or performed other
than those posted. All arrangements for services to be performed shall
be made in a room that is not used for massage therapy. This posting
requirement shall not apply to exempt physicians and/or surgeons who
employ or retain non-exempt persons to perform massage therapy as
part of licensed medical activities.
E.
The
manager shall ensure that the following licenses and certificates/permits
are posted as specifically provided in this section or, in the absence
of a specific provision, available at the massage establishment pursuant
to this chapter:
1.
A
City of Claremont business license must be posted in an open and conspicuous
place upon entering the establishment.
2.
The
owner/operator of a massage establishment shall maintain a register
of all persons employed as a massage technician and their California
Massage Therapy Council certification numbers, along with all receptionists,
or other employees of the massage establishment. Such register shall
be provided to the City upon application of a massage establishment
license and business license, and shall be updated when an employee,
massage technician, or independent contractor is added or discontinues
services at the massage establishment. Notification shall be provided
to the City within 10 calendar days of the date an employee, massage
technician, or independent contractor is added or discontinues service
at the massage establishment. The register shall be made available
for inspection by representatives of the City at any time during the
massage establishment's business hours. The register on site shall
include date of employment and termination. The register shall be
maintained on the premises for a period of one year following termination.
If the register is not made available during inspection, the massage
establishment may receive an administrative citation, along with any
individual, not including patrons, at the massage establishment that
cannot be verified as a legal employee.
3.
CAMTC
certified massage practitioners shall have his or her state-issued
CAMTC identification card in his or her possession while providing
massage services.
F.
No person(s)
other than customers, managers, employees responsible for security,
and valid massage technician permit holders or valid massage certificate
holders, will be allowed by the manager beyond the front lobby during
listed hours of operation. Any other person(s) found, or any person
who allows person(s), beyond the front lobby during business hours
will be in violation of this section. For purposes of this section,
the front lobby is the area located directly inside the front door
entrance to the massage establishment. Areas such as bathrooms, hallways,
massage rooms, reception, business office and/or lounge areas are
not considered part of the front lobby. Areas where hair, nail, and
facial services are conducted in full public view from the lobby are
considered part of the lobby for purposes of this section.
G.
Every
massage establishment or business shall keep a written record of the
dates and hours of each treatment, the complete name and full address
(including street name and address number, and city) of each customer
or client, the first and last name of the massage technician administering
the treatment, and a description of the type of treatment rendered.
These written records shall be prepared prior to administering any
massage and shall be maintained on the premises for a period of one
year. These written records shall be available for immediate inspection
by the Police Department, upon request of a representative of such
department. Any unauthorized disclosure or use of such information
by any agent of the City shall constitute a misdemeanor and such agent
shall be subject to the penalty of the provisions of this chapter
in addition to other penalties provided by law.
H.
To assure
patrons' health, safety, sanitation, and comfort, all employees, including
massage technicians, shall, at all times, be fully clothed in clean,
nontransparent outer garments solidly covering the shoulders to four
inches or less above the knees. Under no circumstance shall these
garments permit the genitals, pubic area, buttocks, or chest to be
exposed. As used herein, "fully clothed" shall mean the wearing of
undergarments, including bras and underpants, as well as the wearing
of clothing, comparable to the clothing commonly worn by nurses and
physical therapists while performing their respective professional
duties.
I.
All front reception, hallway, or front exterior doors shall be unlocked during business hours, and whenever the business is in operation, staff shall be available to assure security for clients and massage staff that is behind closed/unlocked doors. No massage may be given within any cubicle, room, booth, or any area within a massage establishment that is fitted with a door capable of being locked. This subsection shall not apply to massage given by a solo massage practitioner operating ancillary, to a permitted use, as defined in Section 16.900.072. Nothing in this subsection shall require back or rear exterior doors that are used solely for employee access to remain unlocked during business hours.
J.
No massage
technician or other person on the premises shall expose his or her
genitals, pubic regions, buttocks, anuses, or female breasts to the
view of a customer or patron of the massage establishment. All customers
and patrons shall be appropriately draped with a clean, opaque cloth
sufficient to cover their genitals, pubic regions, buttocks, anuses,
or female breasts below a point immediately above the top of the areola
when receiving such services, nor shall contact be made in the course
of administering a massage with the genitals, pubic regions, mammary
papilla or nipple, areola, or anus of another person.
K.
In no
case shall employees wear items such as nightgowns, negligees, or
bathrobes; however, customers or patrons of the massage business may
wear bathrobes while receiving treatment(s) on the premises. There
shall be no display, storage, or use of any instruments, devices,
or paraphernalia which are designed for use in connection with "sexual
activities," including, but not limited to, vibrators, dildos, or
condoms, or any goods or items which are replicas of, or which simulate
anatomical areas as defined in this Code, on the premises of the massage
establishment. Every manager shall be held responsible to assure such
items are not on the premises.
L.
Window
Coverings. No massage establishment employing a massage technician
shall be equipped with tinted or one-way glass in any room or office.
Any windows into the lobby shall not be covered. The lobby must be
clearly visible from the exterior of the business at all times.
M.
Each
massage room shall be equipped with appropriate tables, mats, or chairs
which are durable and easily cleaned between client visits. Mattresses
and waterbeds are not permitted on the premises.
N.
No manager,
operator/owner, massage technician, or other person shall engage in,
conduct, or carry on the business of a massage establishment unless
there is on file with the City Clerk, in full force and effect at
all times, documents issued by an insurance company authorized to
do business in the State of California evidencing that the massage
establishment or business is insured under a liability insurance policy
providing minimum coverage of $100,000 for injury or death to one
person arising out of the operation of any massage establishment and
the administration of massage.
O.
The
Chief of Police, at his/her discretion, may require the following
notice be posted in the lobby, and all rooms where massages take place,
within a massage establishment following any violation(s) of this
code or the Penal Code:
|
NOTICE TO ALL PATRONS
THIS MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS DO NOT
PROVIDE COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION BY THE
CLAREMONT POLICE DEPARTMENT WITHOUT PRIOR NOTICE
|
These notices shall be prepared and issued by the Chief
of Police. The notices shall be posted in an open and conspicuous
place in the front lobby and each room in which massages are provided,
if so required by the Chief of Police. It shall be the responsibility
of the operator/owner and/or manager to assure these signs, once posted
by the Police Department, are not removed, blocked, or covered. Removal,
blockage, or coverage, shall be a violation of this section.
P.
The
massage establishment or any of its representatives shall not discriminate
on the basis of a patron's sex, race, religion, ancestry, national
origin, or other arbitrary factor proscribed by the Unruh Civil Rights
Act, Civil Code Section 51.
Q.
No massage
establishment may be used as a school for teaching massage.
R.
No massage
establishment shall remain open for business unless at least one massage
technician holding a valid massage certificate issued pursuant to
Section 4604 of the Business and Professions Code or a massage technician
permit, subject to Section 5.36.050(B), is on the premises. This section
relates only to those businesses with the sole purpose of providing
massages.
S.
It is
unlawful for any person who operates a massage establishment, or his
or her agent, servant, or employee, to refuse to allow or in any way
delay a lawful inspection of the premises by a representative of the
Police Department at any time it is occupied or open for business.
T.
No person shall enter, be in, or remain in, any part of a massage establishment, while in possession of, consuming, using, or under the influence of, any alcoholic beverage or controlled substance. The operator/owner and manager shall be responsible to ensure that no such person shall enter or remain upon the premises. Service of alcoholic beverages shall be prohibited (exception: ancillary massage businesses that have a conditional use permit approved in compliance with Chapter 16.303 [Conditional Use Permits] and any applicable California Department of Alcoholic Beverage Control (ABC) licenses). See Chapter 16.099 of Title 16 for further information.
U.
No person
or persons shall be allowed to live inside the massage establishment
at any time.
V.
If during
the term of a business license, the license holder has any change
in information submitted on the original or renewal application, including,
but not limited to, the name of the manager(s) for the massage establishment
or business, the permit holder shall notify the City of Claremont
Finance Department of such change, in writing within 15 business days
thereafter. An owner or operator is required to notify the City of
Claremont Finance Department of any intention to rename, change management,
or convey the business to another person.
W.
An owner
or operator of a massage establishment shall be responsible for the
conduct of all employees or independent contractors working on the
premises of the business.
X.
All massage establishments shall be subject to revocation or suspension procedures as set forth in Section 5.36.110, if violations of Section 4609 of the Business and Professions Code (Chapter 10.5 commencing with Section 4600, as amended), or if violations of the local ordinance occur on the business premises.
Y.
No person
shall give, or assist in giving, any massage or other body treatment
to any other person under the age of 18 years, unless the parent or
guardian of the minor person has consented thereto in writing. Written
consent shall be personally presented by the parent or guardian of
the minor.
(15-10; 21-06)
The Chief of Police, Director of Community Development, Code
Enforcement Officers, and their authorized representatives shall have
the right to enter any massage establishment from time-to-time during
regular business hours, unannounced, for the purpose of making reasonable
inspections to observe and enforce compliance with building, fire,
electrical, plumbing, or health regulations, and to ascertain whether
there is compliance with the provisions of this chapter and all laws
of the City of Claremont and State of California.
(15-10)
No Claremont business license issued to a massage establishment,
and no massage technician permit may be sold, transferred or assigned,
including by operation of law, to any other person or persons, and
any such sale, transfer, or assignment shall be deemed to constitute
a voluntary surrender of such license or permit and such license or
permit shall thereafter be deemed terminated and void.
(15-10)
The provisions of this chapter shall be applicable to all persons
and businesses described herein, whether the described activities
were established or permitted before or after the effective date of
this chapter.
(15-10)
B.
Notwithstanding any other provision of law, if the Police Department receives notice that a massage establishment business license holder or massage technician permit holder has been arrested and charges have been filed by the appropriate prosecuting agency against the license holder or permit holder alleging a violation of any offense described in Section 5.36.020 (Definitions—"Disqualifying conduct"), the business license or massage technician permit shall be immediately suspended for up to 15 calendar days. The Police Department shall provide notice to the business license holder or massage technician permit holder within 10 business days that it has evidence of a valid record of arrest and charge and that the license has been suspended unless the license holder or permit holder provides evidence within 15 calendar days that the arrest or charge is either invalid or that the information is otherwise erroneous.
C.
Upon notice to the Police Department that the charges described in subsection B of this section have resulted in a conviction, the suspended business license or suspended massage technician permit shall become subject to permanent revocation. The Police Department shall provide notice to the business license holder or massage technician permit holder within 10 business days that it has evidence of a valid record of conviction and that the license or permit will be revoked unless the license holder or permit holder provides evidence within 15 calendar days that the conviction is either invalid or that the information is otherwise erroneous.
D.
Upon a conviction, in any competent court, for a violation of this Code, or any penal code, the City retains the right to immediately suspend or revoke any massage technician permit or massage establishment business license. Each license holder or permit holder has the right to appeal the decision of the City pursuant to Section 5.36.130 of this chapter. If the decision of the City is upheld after the license holder or permit holder has exhausted his/her appeal rights, the license holder or permit holder shall immediately cease conducting business within the City.
E.
At any time the City has reason to believe that grounds exist to revoke a license issued for a massage establishment, or revoke a permit issued to a massage technician, the City Manager or his/her designee shall cause an investigation of the licensee, permittee, and/or massage establishment to be undertaken. If, based on the result of the investigation, the City Manager or his/her designee determined that grounds to revoke the license are present, then the City Manager or his/her designee shall commence proceedings to revoke the license by providing notice of the City's intent to revoke the license as required in Sections 5.20.120 and 4.04.080.
The license or permit may be suspended per Sections 5.20.100 and 4.04.080 for a maximum of 15 days, in lieu of revocation, if all of the following exist:
1.
The
licensee or permittee has agreed in writing to take specific measures
to cure or correct the violations within a period of not more than
15 calendar days;
2.
The
licensee or permittee has not previously been cited for violations
of this chapter within the 10 years prior to the date of the hearing;
3.
The
violation committed by the licensee or permittee does not present
an immediate threat or danger to the public health, safety, or welfare;
and
F.
The
business license or massage technician permit shall not be renewed
to the same license holder or permit holder or his/her successors
in interest within one year of the date of notice of revocation or
suspension of the license or permit.
G.
Upon notice that the charges have resulted in an acquittal, or have otherwise been dismissed prior to conviction, the license or permit shall be immediately reinstated and any business or massage technician that received notice pursuant to subsection B of this section shall be notified of the reinstatement within 10 business days.
H.
It is
unlawful for any person to conduct the business of a massage establishment
or carry on the business of massage while the subject massage establishment
business license remains suspended or revoked.
(15-10)
A.
Notice of the City's intent to revoke or to not renew a massage establishment business license and of the revocation or non-renewal hearing shall be provided in accordance with the provisions of this section and at least five days prior to the date of proposed revocation as stated in Sections 5.20.120 and 4.04.080 of the Claremont Municipal Code.
B.
Notice
shall be delivered to the licensee or permittee, and other person(s)
designated on the license, at the address(es) designated in the license,
via first class mail..
C.
The
notice shall be in writing and shall contain all of the following:
1.
That
the City intends to revoke or not renew the license;
2.
The
grounds for the revocation or non-renewal;
3.
The
date, time, and place of the revocation hearing, or the non-renewal
hearing, and the Hearing Officer options;
4.
That
the licensee may appear, be heard, examine witnesses, and present
evidence in the licensee's favor; and
5.
That
the licensee's failure to appear, be heard, and present evidence in
the licensee's favor may result in the revocation or non-renewal of
the license.
(15-10; 21-06)
Notwithstanding the appeal procedures established in Section 4.04.080 of this Code, all appeals pertaining to massage establishment business licenses, and massage technician permits shall be appealed as follows:
A.
Any
person aggrieved by any determination, interpretation, decision, or
similar action taken by an employee charged with the responsibility
of issuing licenses or permits pursuant to this chapter may file an
appeal of such action in accordance with this section. The appeal
shall be submitted to the City Clerk within 10 calendar days of the
date of the notice of action on which the appeal is based. The appeal
shall be in writing to the City Manager, on forms provided by the
City and the appeal shall be submitted with an appeal fee in the amount
established by resolution of the City Council. The appellant shall
set forth his or her reason(s) for asserting that a decision or action
was in error, or in violation of this Code, or any other applicable
law. Any decision, action, or order that is being appealed shall be
suspended until a decision on the appeal has been made.
B.
When
an appeal is timely filed, the City Manager shall appoint a hearing
officer to review and render a decision on the appeal. The City Manager
may appoint the Assistant City Manager, a department head, their designees,
or any other individual with qualifications to serve as the hearing
officer for an appeal under this chapter. The appeal hearing shall
be held within 45 calendar days of receipt of the appeal by the City.
The hearing officer shall accept and consider all relevant evidence
related to the appeal. The appellant shall be provided an opportunity
to present written and oral evidence in support of the appeal.
C.
Any
decision of the hearing officer may be appealed to the City Council.
An appeal to the City Council must be submitted to the City Clerk
within 10 calendar days of the date of the notice of action by the
hearing officer. The appeal shall be in writing on a form provided
by the City and the appellant shall pay the applicable appeal fee
at the time the appeal is filed. Any action appealed shall be suspended
until action has been taken on the appeal by the City Council. The
written appeal shall state the appellant's reason(s) for asserting
that the hearing officer's decision was in error or in violation of
this Code or any other law. The City Council shall hear the appeal
based solely on the written record submitted by the appellant and
the City, unless the City Council determines that further oral testimony
is needed in order to render a decision. The appeal shall be heard
by the City Council within 45 calendar days from the date the appeal
is filed with the City Clerk. The City Council may amend, affirm,
or reverse the decision of the hearing officer. The City Council's
decision shall be deemed to be the final action by the City.
(15-10)
A.
Any
violation of the provisions of this chapter is punishable as a misdemeanor.
Each person shall be deemed guilty of a separate offense for each
and every day during any portion of which any violation of any provisions
of this Code is committed, continued, or permitted by such person
and shall be punished accordingly.
B.
An operator/owner
and/or a manager shall be responsible for the conduct of all massage
technicians, independent contractors, and any other employees while
on the premises of the massage establishment. All persons found working,
helping, or in any way assisting, in the massage establishment, shall
be considered employees of the operator/owner. Any act or omission
of any employee constituting a violation of the provisions of this
chapter shall be deemed the act or omission of the operator/owner
for purposes of determining whether the operator/owner's business
license shall be revoked, suspended, denied, or renewed.
C.
Any
operator/owner, or manager, of a massage establishment who knowingly
permits any person who is not in possession of a valid massage technician
permit or valid massage certificate, to work as a massage technician,
or in any way assist in giving a massage within such a place of business,
shall be guilty of a misdemeanor.
D.
Any
massage establishment operated, conducted or maintained contrary to
the provisions of this chapter is unlawful and a public nuisance,
and the City Attorney may, in addition to or in lieu of prosecuting
a criminal action thereunder, commence actions or proceedings for
the abatement, removal and enjoinment thereof, in the manner provided
by law, and shall take such other steps and apply to such 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 a massage establishment contrary
to the provisions of this chapter.
(15-10)
The City Council shall establish by resolution, and from time-to-time
may amend, the fees for the administration of this chapter. If additional
fees are required for further investigation of an applicant, the license
shall not be issued until the additional fees are paid. Fees required
by this chapter shall be in addition to any required by any other
provision of this Code.
(15-10)
