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HomeMy WebLinkAboutORD-07-05 Amend Ch 5.56- Massage EstablishmentsI I ORDINANCE NO. 7- 05 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ORANGE AMENDING CHAPTER 5.56 OF THE ORANGE MUNICIPAL CODE PERTAINING TO MASSAGE ESTABLISHMENTS.WHEREAS, Section 65858(a) of the California Government Code authorizes the City Council to adopt, as an urgency measure, an interim ordinance prohibiting any uses which may be in conflict with a contemplated zoning proposal which the City Council, planning commission or planning department is studying to protect the public safety, health and welfare; and WHEREAS, the City is contemplating changes to its massage establishment ordinance, including possible zoning changes; and WHEREAS, in 1998 the City Council adopted Ordinance No, 1- 98, which significantly altered the manner in which the City treated massage establishments,legitimizing the practice of massage as a therapeutic profession rather than treating massage establishments as an adult business; and WHEREAS, in 2001 the City Council adopted Ordinance 12-01 at the request of existing massage establishments to make provisions for a massage applicant to be issued a temporary massage permit with a six-month grace period to pass a national certification exam;and WHEREAS, the purpose of Ordinance 12-01 was to assist massage establishments in retaining massage therapists who were on track to meet all the requirements of the City's massage ordinance, with the expectation that the massage therapists would fulfill all of the City's requirements within the six-month period; and WHEREAS, since December of 2001 the City has processed approximately 323 massage permit applications which have been terminated before or after the six-month grace period because the massage applicant did not provide the necessary documentation evidencing that he or she had completed the national certification exam; and WHEREAS, as of December 8, 2004, the City had 212 permitted massage therapists,67 of which have the temporary six-month permit or approximately one third of all the practicing massage therapists in the City; and WHEREAS, based on these statistics, it is apparent that a significant number of massage therapist applicants who have been issued the temporary permit are not completing the national certification exam WHEREAS, based on these statistics, of these 67 temporary permits, most will never complete the City's requirements and/or never take the national certification exam; and WHEREAS, of the 27 massage establishments in the City, 17 of them have opened in the last two years and since October of 2003, six massage establishments have opened on Tustin Street within one mile of each other; and WHEREAS, as of November 30, 2004, of the 28 massage therapist permits that have been issued for four recently opened massage establishments on Tustin Street (Orange County Body Care, East/West Massage, Massage Center and Phoenix Body Works), 18 of have been temporary massage permits; and WHEREAS, several of these new massage establishments on Tustin Street are advertising beside adult businesses in local newspapers; and WHEREAS, it has become apparent that a majority of the massage therapists receiving permits from the City are transient and will never take and/or past the national certification exam, which is the best vehicle in the City's ordinance for determining whether a massage applicant has actually leamed the profession of therapeutic massage; and WHEREAS, the City's efforts to treat the massage profession as a legitimate therapeutic profession are being undermined by an apparent abuse of the temporary massage permit; and WHEREAS, the primary purpose of setting requirements and standards for the issuance of a massage therapist permit was to reduce the risk of injury to massage clients and to rectify past abuses of massage establishments as avenues for prostitution, NOW THEREFORE, the City Council of the City of Orange hereby ordains as follows: SECTION I: Chapter 5,56 of the Orange Municipal Code is deleted in its entirety and replaced with the following: CHAPTER 5.56 MASSAGE ESTABLISHMENTS Sections: 5,56,010 5.56,020 5,56,030 5,56,040 5.56,050 Findings and Purpose, Definitions, Operator's Permit Required, Application for Operator's Permit. Operator's Permit Issuance and Denial. 2 I I 5,56,060 5,56,070 5.56,080 5.56,090 5,56,100 5,56,110 5,56,120 5,56,130 5.56,140 5,56,150 5,56,160 Massage Technician Permit. Application for Massage Technician Permit. Massage Technician Permit Issuance and Denial. Off-Premises Massage,Requirements of Operation,Change of Business, Fees,Exemptions, Existing Permittees, Massage Trainees,Transfer, Duration and Renewal of Permits,Suspension, Revocation, Denial and Appeal.Violation and Penalty,5.56,010 Findings and Purpose,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 of Orange (" City"),B, The City 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 operation of the massage establishment including, but not limited to, age of massage personnel, education, experience and training of massage personnel, sanitary conditions at massage establishments, hours of operation, and prohibitions on the sale of food or beverages within the establishment.C, There is significant risk of injury to massage clients by improperly trained massage technicians 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, The establishment of reasonable standards for issuance of permits and restrictions on operations would serve to reduce the risk of illegal activity,E, The restrictions and requirements contained in this Chapter reduce the burdens on the Police Department and permit the deployment of police personnel so that other crimes may be prevented and other laws enforced,F. Past and current abuses by disreputable massage establishments have undermined and tarnished reputable massage establishments, Massage therapy practiced by reputable and educated massage technicians is recognized as therapeutically beneficial.G, The goals of this Chapter are to implement safeguards against injury and economic loss; to recognize legitimate massage therapy as a profession of the healing arts;and to prevent illegal activity by irreputable massage establishments, 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, 5,56,020 Definitions, A. "Chief of Police," The Chief of Police of the City of Orange, or his/her designated representative, B, "City Manager," The City Manager of the City of Orange, or his/her designated representative, C, "Conviction", "Convicted," A plea or verdict of guilty or a conviction following a plea of nolo contendere, D, "Customer Area," Areas open to customers of the establishment. E, "Health Department." The Health Care Agency of the County of Orange, the services of which are performed pursuant to contract with City, F, "Massage Technician," - A non-medical health care practitioner meeting the requirements of this Chapter who uses a massage specialty and therapeutic approach in treating patrons in exchange for anything of value whatsoever. The terms "Massage Therapist" and "Massage Technician" are included within this definition for purposes of this chapter. G, "Massage Trainee," - A non-medical health care practitioner meeting the requirements of this Chapter who uses a massage specialty and therapeutic approach in treating patrons and who is directly supervised by a Massage Technician, H, "Manager." The person(s) designated by the operator of the massage establishment to act as the representative and agent of the operator in managing day- to-day operations of the massage establishment with the same liabilities and responsibilities,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, A manager may also be an owner. A manager must meet the standards and qualifications of Section 5,56,030, et seq" to qualify as a manager and obtain a technician permit.I. "Massage," Any method of treating the external parts of the body for remedial,hygienic or any other reason or purpose, whether by means of pressure, rubbing or other manner of touching external parts of the body with the hands, or with the aid of any mechanical or electrical apparatus with or without supplementary aids such as oils, powders,creams or other similar preparations commonly used in this J, "Massage Establishment." Any business conducted within the City wherein any person, for money or any other consideration, administers to another person a massage or health treatments involving massage as a significant function, I K, "Operator." All persons who have an ownership interest in the massage establishment and are responsible for its day-to- day operations,L. "Operator's Permit." The permit required pursuant to the provisions of this chapter to operate or manage a massage establishment.M. "Owner," The individual(s) whose name appears on the City business license,N, "Person," Any individual, or corporation, partnership, association or other group or combination of individuals acting as an entity,0, "Recognized School of Massage," Any school or institution oflearning which:1. Teaches the theory, ethics, practice, profession and work of massage;2, Requires a residence course of study before the student is furnished with a diploma or certificate of completion; and 3, Has been approved pursuant to California Education Code Sections 94310, et seq" or as the same may be amended, or if said school is not located in California,has complied with standards commensurate with those required in said Sections 94310, et seq" and has obtained certification under any similar state certification program, if such exists,4, Schools offering a correspondence course not requmng actual attendance shall not be deemed a recognized school.p, "Qualified Massage Association", An organization or association that meets each of the following requirements:I 1. Requires that its members meet minimum educational requirements.The educational requirements must include at least five hundred (500) classroom hours in a progressive curriculum, or its equivalent, as determined by written and practical examination,in anatomy, physiology, hygiene, sanitation, massage theory and practice, and ethics of massage;2, Offers and requires participation in continuing education programs;3, Has an established code of ethics and has enforcement procedures for the suspension and revocation of membership of persons violating the code of 4" Is ope~ to members of the general public meeting the requirements for membersh~p on either a regIOnal, statewide or national basis and is devoted to serving the mterest of Its members, the public and the profession, 5, Requires participation and completion by members of a mlmmum number of hours of specified continuing education as a condition of continued membership, 5,56,030 OPerator's Permit Reauired, No person shall own or operate a massage establishment within the City without first obtaining an operator's permit pursuant to this Chapter and securing the necessary business license as required by this Code, 5,56,040 Application for Operator's Permit. A, Any person desiring an operator's permit for a massage establishment shall file a written application on the form required by the Police Department and as approved by the City Attorney, The Police Department shall conduct an investigation of the applicant. The applications shall be substantially uniform for all applicants for an Operator's permit and shall be signed under penalty of peIjury, The application shall be accompanied by the appropriate filing fee established by resolution of the City Council which shall be a reasonable estimate of the City's cost in processing such applications, The application shall be completed and signed by the operator of the proposed massage establishment, if a sole proprietorship; one general partner, if the operator is a partnership; one officer or one director, if the operator is a corporation; and one participant, if the operator is a joint venture, The application for permit does not authorize operation of a massage establishment unless and until such permit has been properly granted. The type of ownership of the business must be stated, i,e" whether by individual, partnership, corporation or otherwise, If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent (5%) of the stock of that corporation. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners, including limited partners, The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer. Such designated persons shall complete and sign all application forms required for an individual applicant under this Chapter, but only one application fee shall be charged, A reproducible photo identification of the applicant (i,e, California Driver's License or LD. card) shall accompany the application, B, The application shall include, but not be limited to requiring the following information: 1. The applicant's full name, including any aliases, nicknames, or prior names; 6 2, Complete residence, employment and permit history with other agencies, including permits issued, suspended, revoked or denied; I 3, Whether the applicant has been convicted, plead nolo contendre or had expunged any of the crimes listed in Section 5,56,050 ofthis Code; 4, Social Security number and driver's license number and date of expiration; 5, A complete current list of the names and residence addresses of all proposed massage technicians and employees in the massage establishment and the name and residence addresses of the manager or managing employee proposed to be principally in charge ofthe operation of the massage establishment; 6. An agreement that the operator consents to inspections by the City's Building, Fire, and Police Departments and the County Health Department; and 7, A description of any other business operated on the same premises, or within the City or the State that is owned or operated by the applicant. 8, A complete set of fingerprints taken by the Police Department. 9, The name and address ofthe owner and lessor of the real property upon or in which the business is to be conducted, In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the property that a massage establishment will be located on his/her property, 10, Authorization for the City, its agents and employees to seek verification of the information contained in the application, II. Such other identification and information as the Chief of Police may require in order to discover the truth of the matters herein specified and as required to be set forth in the application, I 12, A statement in writing and dated by the applicant that he or she certifies under penalty of peIjury that all information contained in the application is true and correct. 13. If, during the term of a permit, the permit holder has any change in information submitted on the original or renewal application, the permit holder shall notifY the Police Department of such change within ten business days thereafter, in writing. C, Test. 7 Prior to the issuance of an operator's permit and after submission of the application required by this Chapter and upon renewal of any operator's permit, each operator and the operator's designated manager must pass a written test administered by the City and/or its contractor covering the requirements of this Chapter, New managers must take and pass this test prior to being employed as a manager at a massage establishment. A score of 70% or better is required to pass the test. An applicant who fails to pass the examination shall not be eligible to take another examination until 30 days after the previous examination, An applicant who fails to pass upon a second attempt, shall not be eligible to take the test for six months after the day in which the applicant was deemed by the City to have failed, The examination will be in English and if the applicant requires that the examination be given in another language, the applicant must, at his or her cost, make arrangements with a court certified interpreter to interpret the ordinance examination, Proof of court certification must be provided to the Chief of Police prior to administration of the examination, 5,56,050 Operator's Permit Issuance and Denial. A. Upon receipt of a written application for a permit, the Police Department shall conduct an investigation to ascertain whether an operator's permit should be issued as requested, The Chief of Police shall, within sixty (60) days of the filing of an application, approve, conditionally approve or deny the application, The sixty (60) day period may be extended for up to fifteen (15) additional days, if necessary to complete the investigation, The Chief of Police shall issue such permit as requested, unless the Chief of Police makes any of the following findings: 1, The applicant, if an individual, or any of the officers or directors of the corporation, if the applicant is a corporation; or a partner, including limited partners, if the applicant is a partnership, or any person directly engaged or employed in the massage establishment has within eight years preceding the date of application: a, Been convicted of a violation of California Penal Code Sections 266h, 266i, 314, 315, 316, 318, Subsections (a) and (b) of Penal Code Section 647 or 650,5, or convicted of a violation of California Penal Code Section 415 or any lesser included or lesser related offense, in satisfaction of, or as a substitute for, any of the previously listed crimes, or any other provision of law pursuant to which a person is required to register under the provisions of Penal Code Section 290; b, Been convicted of 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 Health and Safety Code Section 11 054, 11 055, 11 056, 11057 or 11058; c, 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 provisions of law in a jurisdiction outside the State of California; 8 I I d, Been convicted of an act in another jurisdiction, which if committed in this state would constitute grounds for denial, suspension or revocation of the permit; e. Been convicted of an act involving dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are related to the qualifications, functions or duties of the operator; f, Been convicted of any misdemeanor or felony, either of which relate directly to the operation of a massage establislunent: g, The applicant has had a massage operator or massage technician permit or other similar license or permit denied, suspended or revoked for cause by a licensing authority or by any City, County or State, 2. The applicant has made a false, misleading or fraudulent statement of material fact to the City in the permit application process, 3, The application does not contain all of the material information required by the application, 4, The massage establislunent as proposed by the applicant does not comply with all applicable laws, including, but not limited to, health, building, zoning, fire and safety requirements and standards, 5, The applicant does not otherwise satisfY the requirements of this Chapter. 6, time specified, The applicant has not satisfied the requirements of this Chapter in the 7, If the application is denied for failure to comply with this Section, the applicant may not reapply for a period of 6 months from the date the application was denied, B. permit: All persons shall comply with the following conditions on issuance of the I. No person shall massage the genital or anal area of any patron or the breasts of any female patron, nor shall any operator of a massage establislunent allow or permit such massage, No person, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, buttocks, and in the case of a female, her breast(s) are fully covered, 2, No person granted a permit pursuant to this Chapter shall use any name or conduct business under any designation not specified in his or her permit. 3, All massage establislunents required to be licensed under this Chapter shall have a manager on the premises at all times the massage establislunent is open. The 9 operator of each massage establishment shall file a statement with the Chief of Police designating the person or persons with power to act as a manager, The operator and/or on duty manager shall post, on a daily basis, the name of each on duty manager and each on duty technician in a conspicuous public place in the lobby of the massage establishment. The operator, or the manager in the operator's absence, shall be responsible for ensuring compliance with this Chapter, 4, No licensed massage establishment shall be open for business without having at least one massage technician holding a current valid permit for the specific establishment on the premises and on duty at all times when the massage establishment is open and providing massage services, 5, The operator and/or designated manager(s) shall ensure the massage technician permit for each on-duty massage technician is conspicuously displayed in a public place in the lobby and that each massage technician is wearing or has on their person the identification required by Section 5,50,040(B)(3) at all times when in the massage establishment. Such identification shall be provided to City regulatory officials upon demand,6, An operator and/or on duty manager shall be responsible for the conduct of all employees or independent contractors while they are on the licensed premises,Any act or omission of any employee or independent contractor constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator for purposes of determining whether the operator's license shall be revoked, suspended, denied or renewed,7, No operator or manager shall employ any person as a massage technician who does not have a valid massage technician permit issued pursuant to this Chapter. Every operator or manager shall report to the Chief of Police any change in personnel who are either operators, managers or massage technicians on the form and in the manner required by the Chief of Police, The report shall contain the name of the new personnel, their position and the date of hire or leaving, The report shall be made within five days of any such occurrence, If left with the operator, the operator shall deliver any massage technician permit and photo identification card to the Chief of Police within 5 days of the massage technician's leaving employment.8, The operator and designated manager(s) shall ensure the Massage Technician permit for each on-duty Massage Technician is displayed in a conspicuous public place,9, All persons employed in the massage establishment shall be fully clothed at all times, Clothing shall be of a fully opaque, non-transparent material and provide complete covering from mid-thigh to three (3) inches below the collarbone,10, The operator and/or on duty manager shall maintain a register of all employees, showing the name, nicknames and aliases used by the employee, home address,age, birth date, gender, height, weight, color of hair and eyes, phone numbers, social security number, date of employment and termination, if any, and duties of each information on each employee shall be maintained in the register on the premises for a period of two years following termination, The operator and/or manager on duty shall make the register of employees available immediately for inspection by police upon demand of a representative of the Police Department at all reasonable times, I II. Each operator shall provide the Chief of Police with evidence of the insurance required by Section 5,56,\00 within forty-five (45) days of the date of issuance of the permit.12, The operator shall comply with all provisions of this Chapter and any applicable provisions of the Orange Municipal Code,5.56,060 Massage Technician Permit.No person shall perform or administer a massage, or advertise to provide massage services in City, unless, such person has a valid massage permit issued pursuant to Sections5.56,070 and 5,56,080 of this Chapter. A massage technician shall comply with the requirements of Sections 5,56,070 and 5,56, 080,5,56,070 Application for Massage Technician Permit.A. Any person desiring a massage technician permit shall file a written application on the form required by the Police Department and as approved by the City Attorney, which shall conduct an investigation. Such form shall require the information set forth in Section5.56,040, The application shall be substantially similar for all applicants and shall be accompanied by the appropriate filing fee established by resolution of the City Council. The application shall require, at a minimum, the following information and no permit shall be issued unless the applicant provides all information contained in the application,I, A statement of the exact location at which the applicant will be working as a massage technician, including the full street address and all telephone numbers associated with said location, and the name and address of the following personal information concerning the applicant:2, Full complete name, and all aliases used by the applicant, along with complete residence address and telephone;I 3, All criminal convictions, including pleas of nolo contendere, within the last ten years, including those dismissed or expunged pursuant to Penal Code Section 1203. 4,but excluding minor traffic violations, and the date and place of each such conviction and reason therefor.4. A complete set of fingerprints taken by the Police Department. 5" Such other information and identification as the Chief of Police may reqUIre III order to dIscover the truth of the matters herein specified and as required to be set forth in the application, 6, Authorization for the City, its agents and employees to seek verification of the information contained in the application, 7, A statement in writing, and dated, by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct. 8, If, during the term of a permit, a permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the Police Department of such change within ten business days thereafter, in writing, 9, Is a member in good standing in a regional, state or national professional qualified massage association as defined in Section 5,56,020; or 10, Each applicant must furnish an original or certified copy of a diploma or certificate and certified transcript for completion of five hundred (500) hours of instruction from an approved or recognized school of massage, wherein the method, practice, profession, theory, ethics, anatomical and physiological knowledge and practice of massage is taught by State certified instructors, The applicant must also supply a course description, an outline of material covered, and a letter to the City from the school administrator verifying completion, Any out-of-state course of study submitted for approval shall meet the State of California's Office of Post-Secondary Education's minimum requirements and shall be for a minimum completion of 500 hours of on-premises training,11, Possess a valid CPR certification,B, To obtain a permit and after submitting an application as required by this Chapter, each applicant for a Massage Technician permit must pass a written and practical test administered by the City and/or its contractor and pay the cost of administration thereof in the amount established by resolution of the City Council. A score of seventy percent (70%) or better is required on each section of the test. An applicant who fails to pass the examination shall not be eligible to take another examination until thirty (30) days after the previous examination, An applicant who fails to pass upon a second attempt, shall not again be eligible until six months after the day the City deems the applicant has failed, The examination will be in the English language, In the event that the applicant requires that the examination be given in another language, the applicant must at his or her own cost, make arrangements with a court certified and Chief of Police approved interpreter to interpret the ordinance examination, Proof of court certification must be provided to the Chief of Police prior to the administration of the examination,1, The examination shall fairly determine the ability of the applicant to perform the work which applicant will be authorized to do by the permit applied I I include, but is not limited to, the following subjects: anatomy, physiology, pathology, hygiene, contraindications, sanitation, massage theory, ethics of massage practice, first aid and CPR, and the provisions of this chapter. 2, Qualified persons shall prepare the examination, A qualified person shall have at least five (5) years oflicensing or practice in his or her healthcare field and shall include licensed healthcare professionals, such as doctors, chiropractors, massage therapist, massage school instructors, physical therapists and individuals who have pursued required courses in and graduated from an approved massage school and received a diploma from the massage school. 3, The Chief of Police shall establish standards and procedures governing the administration and grading of all examinations and shall exercise such supervision as may be necessary to insure compliance therewith, C, Renewal. As a condition of renewal, a Massage Technician must either take and pass a written examination covering the requirements of this Chapter or in the alternative, show written proof that the applicant has taken and completed a total of thirty-six (36) hours of continuing education within the permit period from a state accredited institution, junior college or college courses in the areas designated in this Chapter, or National Board Certified courses, If an applicant has three or more sustained Municipal Code violations during any permit period, the applicant, upon renewal, must take and pass the written examination as designated in this Chapter regardless of any continuing education hours,D, In the event that the Chief of Police determines to not initiate or to discontinue having the City administer its own test as provided in this section, a massage technician may comply with the requirements of this section by taking and passing an independently prepared and administered National Certification Exam which has been recognized by objective standards to fairly evaluate professional levels of skill safety and competence, as determined by the National Commission for Certifying Agencies ( NCCA),E, Reciprocity, The Chief of Police shall maintain a list of jurisdictions, if any,that have regulations and educational and testing requirements that are materially identical to those set forth in this Chapter, If an applicant provides proof to the satisfaction of the Chief of Police that the applicant has met the requirements of a jurisdiction on the list and possesses a current permit to practice as a massage technician in such jurisdiction, the Chief of Police shall issue the applicant a permit under this section, provided that: (I) the applicant otherwise meets all the other requirements of this Chapter, including, but not limited to, Sections 5,56,040, 5,56,050, 5,56,060 and 5,56.080; (2) the applicant has not had any operator or massage permit suspended or revoked; and (3) the applicant has not relinquished such a permit in lieu of any proceeding against the applicant for an alleged violation of the permit conditions,5,56,080 Massage Technician Permit Issuance and Denial. A, Upon receipt of a written application for a permit, the Chief of Police shall conduct an investigation to ascertain whether such permit should be issued as requested, The Chief of Police shall approve, conditionally approve or deny the application within sixty (60) days of the filing of an application, This 60-day period may be continued for an additional 15 days if necessitated by the occurrence of events beyond the control of the Chief of Police to complete the investigation, The Chief of Police shall issue such permit as requested, unless he/she makes any of the following findings:1, The applicant has within eight (8) years preceding the date of the application been convicted of any of the following:a, A violation of California Penal Code sections 266(h), 266( i),314,315,316,318, subsections (a) and (b) of Penal Code section 647 or650.5, or when the prosecution accepted a plea of guilty or nolo contendere to a charge of a violation of California Penal Code section 415 or any lesser included or lesser related offense, in satisfaction, or as a substitute for, any other previously listed crimes, or any other provision of law pursuant to which a person is required to register under the provisions of Penal Code Section 290,b, 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 Health and Safety Code section 11054,11055,11056, 11057 or 11058,c, An act in another jurisdiction, which if committed in this State would constitute grounds for denial, suspension, or revocation of the permit.d, An act involving dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are related to the qualifications, functions or duties of the operator.e, Any misdemeanor or felony, either which relate directly to the operation of a massage establishment.2, The applicant has been subjected to a permanent injunction against the conduct or maintaining of a nuisance pursuant to sections 11225 through 11235 of the California Penal Code, or any similar provisions of law in a jurisdiction outside of the State of California,3, The applicant has had a massage operator massage technician permit or other similar license or permit denied, suspended or revoked for cause by a licensing authority or by any city, county or state,4. The applicant has made a false, misleading or fraudulent statement of material fact to the City in the current permit application process, I I 5, The application does not contain all of the material information required by the application, 6, Massage establishment as proposed by the applicant does not comply with all applicable laws, including, but not limited to, health, building, zoning, fire and safety requirements and standards. 7, The applicant has not satisfied the requirements of this Chapter, 8, If an application is denied for failure to comply with this Section, the applicant may not reapply for a period of six (6) months from the date the application was denied. For massage technician applicants applying for a permit to practice massage at a massage establishment with a current operator's permit, the Chief of Police shall conditionally approve the application if the investigation is not completed within sixty (60) days until such time as the Chief of Police determines to approve or deny the application, B, All massage technicians shall comply with the following conditions upon issuance of a Massage Technician's Permit: 1, A person shall not massage the genital or anal area of any patron or the breast of any female patient nor shall any operator of a massage establishment allow or permit such massage, No person, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, buttocks, and in the case of a female, breast( s) are fully covered, 2, A massage technician shall wear or have on their person a photo identification card prepared and issued by the City at all times while present in the massage establishment. Such identification shall be provided to City regulatory officials upon demand, The identification card shall bear the true name and any "aka" or nickname utilized by a technician while conducting business, If a massage technician changes his or her business address, he or she shall, prior to such change, obtain from the Chief of Police a new photo identification card and advise the Police Department, in writing, of the new business address. No person granted a permit pursuant to this chapter shall use any name or conduct business under any designation not specified in his or her permit. 3, Massage Technicians shall not perform any massage at any location other than the location specified on the permit, unless performing an off-premises massage pursuant to permit.4, While on duty, a massage technician shall not use any name other than that specified on the photo identification card, 5, Massage Technician shall be fully clothed at all times, Clothing should be of fully opaque, non-transparent material and provide complete covering from mid- thigh to three inches below the collarbone,6, Massage Technician consents to the inspection of the massage establishment by the City's Community Development, Fire and Police Department and the Health Department for purposes of determining that the provisions of this Chapter or other applicable laws or regulations are met. Massage Technician consents to the inspection of the occupied massage rooms by the Police Department for the purposes of determining that provisions of this Chapter are met on occurrence of any of the conditions described in this chapter which would require posting of notice to all patrons as described in this Chapter,5,56,090 Off-Premises Massage,A. For purposes of this Chapter, a massage performed or administered off-premises and requiring an off-premises massage permit shall be one performed or administered for money or other consideration by a permitted massage technician at a location other than a licensed massage establishment.B, No person shall perform or administer a massage off the premises of a massage establishment, for money or other consideration, without obtaining a massage permit.C, No off-premises massage shall be performed unless the patron remains fully clothed and is otherwise performed in a marmer which does not violate the provisions of this Chapter.D, Off-premises massages may not be performedIII a residential unit or hotel/motel room,E, Persons seeking an off-premises massage permit shall state in their application the specific reasons necessitating the performance of the massage at a location other than a massage establishment.5, 56,100 Reauirements of Operation,A, Facilities,1, Structure, Massage shall be carried on in a structure which is located in a zoning district which permits such use, When a new massage establishment is constructed,three (3) sets of plans shall be submitted to City and the Health Department for approval and shall be accompanied by the appropriate plan check fee,2. ~,Each operator shall post and maintain, adjacent to the main entrance and the front of the business, a readable sign identifying the premises as a massage establishment. The sign and the front of the business shall not be illuminated by strobe or flashing lights, Each operator shall display the operator's permit in a conspicuous I I 3, Services List. Each operator shall post and maintain a list of services available and the cost of such services in a conspicuous public place within the premises, No operator or responsible managing employee shall permit and no massage technician shall offer or perform any service other than those posted. All tips and payments must be made in the lobby area of the massage facility, 4, Lighting, Each operator shall provide in each room sufficient lighting and ventilation that complies with the Uniform Building Code, 5, Bath Facilities, A minimum of one (1) toilet and one (1) separate wash basin shall be available for patrons in each massage establishment, which basin shall provide soap or detergent and hot and cold running water at all times and shall be located within close proximity to the area devoted to the performing of massage services. A permanently installed soap dispenser, filled with soap, and a single service towel dispenser shall be provided at the restroom hand wash sink, No bar soap can be used, A trash receptacle shall be provided in each toilet room, Showers may be provided at the operator's option, 6, Separate Rooms, If male and female patrons are to be treated simultaneously at the same massage establishment, separate massage rooms shall be provided for male and female patrons, This provision shall not apply if the patrons remain fully clothed at all times, 7, Maintenance, All facilities for the massage establishment must be in good repair and shall be thoroughly cleaned and sanitized each day the business is in operation, All walls, floors and ceilings of each restroom and shower area shall be made smooth and easily cleanable, 8, Massage Table, A massage table or massage chair shall be provided in each massage room and the massage shall be performed on this massage table or chair, The tables and chairs shall have a minimum height of six inches (6"), Massage tables and chairs shall be covered with durable, washable plastic or other waterproof material. Beds, floor mattresses and waterbeds may not be used in the administration of a massage, B, Operations, 1, Equipment. Each operator shall provide and maintain adequate equipment for disinfecting and sterilizing of instruments used in massage, 2, Inspections, As a condition of being granted an operator's permit, the operator consents to the inspection of the massage establishment during business hours by the City's Building, Fire and Police Departments and the County Health Department for the purpose of determining that the provisions of this Chapter or other applicable laws or regulations are met. 17 The City's Building, Fire and Police Departments, and the Health Department may, from time to time, make an inspection of each massage establishment for the purpose of determining that the provisions of this Chapter, state law or other applicable laws or regulations are met. Criminal investigations may be conducted as directed by the Chief of Police, The Police Department may inspect the occupied massage rooms for the purpose of determining that the provisions of this Chapter are met upon occurrence of any of the conditions which would require the posting of the Notice To All Patrons as set forth in this Chapter. During an inspection, the Police Department may verify the identity of all on- duty massage technicians,3, Linen, Common use of towels or linen shall not be permitted, Towels and linen shall be laundered or changed promptly after each use, Separate enclosed cabinets shall be provided for the storage of clean and soiled linen and shall be plainly marked " clean linen" and "soiled linen" and shall have doors or covers,4, AlcoholicBeverages/Drugs, No-person shall enter, be in, or remain in,any part of a massage establishment licensed under this Chapter while in possession of,consuming, using or under the influence of, any alcoholic beverage or controlled substance,The owner, operator and manager shall be responsible to ensure that no such person shall enter or remain upon the massage establishment. Service of alcoholic beverages shall not be permitted,5, Recordings, No electrical, mechanical or artificial device shall be used by the operator or any employee of the massage establishment foraudio and/ or video recording or for monitoring the performance of a massage, or the conversation or other sounds in the massage rooms without the knowledge and consent of the patron,6, Coverings, Each massage establishment shall provide to all patrons clean, sanitary and opaque coverings capable of covering the patrons specified anatomical areas, including the genital area, buttocks and female breasts, No common use of such coverings shall be permitted and re-use is prohibited unless adequately cleaned,7, Records, Every person operating a massage establishment shall keep a record of the dates and hours of each treatment or service, the name and address of the patron,the name of technician administering such service and a description of the treatment or service rendered, A short medical history form shall be completed by the operator to determine if the patron has any communicable diseases, areas of pain, high blood pressure or any physical condition which may be adversely affected by massage, These records shall be prepared prior to administering any massage or treatment and shall be retained for a period of one (I) month after such treatment or service, These records shall be open to inspection only by officials charged with enforcement of this Chapter and for no other purpose, The Police Department may periodically inspect the records to ensure compliance, The information furnished or secured as a result of any such records should be used only to ensure and enforce compliance with this Chapter or other applicable laws and shall remain confidential. 8, Hours of Ooeration, No person shall operate a massage establishment or administer a massage in any massage establishment or administer a massage pursuant to an off-premises massage permit between the hours of 10:00 p,m, and 6:00 a,m, All customers,patrons and visitors shall be excluded from the massage establishment during those hours,I 9, Advertising, No massage establishment granted a permit under this article shall place, publish or distribute or cause to be placed, published or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers or clients that any service is available other than those services described in this Chapter, nor shall any massage establishment employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available other than those services authorized by this Chapter.10, Insurance, No 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 permittee is insured under a liability insurance policy providing minimum coverage of $1,000,000 for injury or death to one person arising out of the operation of any massage establishment and the administration of a massage,II, Compliance, Proof of compliance with all applicable provisions of the Orange Municipal Code shall be provided,12, Doors, All front, reception, hallway or front exterior doors ( except back or rear exterior doors used for employee entrance to and exit from the massage establishment) shall be unlocked during business hours, No massage may be given within any cubicle, room, booth or any area within a massage establishment which is fitted with a door capable of being locked, unless the only door is an exterior door.13, Notices,In the event that any employee of the massage establishment or any person who has been aided and abetted by an employee of the massage establishment has been found, after full hearing by administrative proceeding or court, to have violated any of the offenses listed in Section 5,56,050, the notice set forth below shall be prepared and issued by the Chief of Police: I NOTICE TO ALL PATRONS THIS MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRlV ACY AND ARE SUBJECT TO INSPECTION BY THE ORANGE POLICE DEPARTMENT WITHOUT PRIOR NOTICE, The notice shall be conspicuously posted in a location within the massage establishment that is easily visible to any person entering the premises and in each massage room, The notice shall be so posted for twelve (12) months following the violation of any of the offenses set forth above, 5,56.110 Change of Business, Every massage establishment operator shall report immediately to the Police Department any and all changes of ownership or management of the massage establishment, including, but not limited to, changes of manager or other person principally in charge, stockholders holding more than five percent (5%) of the stock of the corporation, officers, directors and partners in any and all changes of name, style or designation under which the business is to be conducted, and all changes of address or telephone numbers of the massage business, 5.56,120 Fees, The City Council shall establish by resolution the fees for the administration of this Chapter, Massage establishment operators shall pay the Health Services Fees adopted by the County of Orange, Such fees shall be paid directly to Health Department and be retained by the County as reimbursement for said services related to this Chapter. Fees required by this Chapter shall be in addition to any required under any other chapter of this Code, 5.56.130 Exemptions. Existing Permittees. Massage Trainees, A, This Chapter shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions, 1. Physicians, surgeons, chiropractors, acupuncturists, physical therapists or osteopaths duly licensed to practice their respective professions in the State of California, 2, Physicians, surgeons, chiropractors, acupuncturists, physical therapists or osteopaths duly licensed to practice their respective professions in the State of California; so long as such professionals are performing massage establishment activities, as defined in this chapter, at a business as part of their respective professions, but not if massage establishment activities are at any time performed by massage technicians who are required to obtain a massage technician permit pursuant to this chapter. 20 I I 3, A registered or licensed vocational nurse working on the premises of, and under the direct supervision of, a State licensed physician, surgeon, chiropractor or osteopath, Practical nurses or other persons that do not meet the requisite qualifications for a massage technician, or any other person not otherwise licensed by the State of California, whether or not employed by physicians, surgeons, chiropractors, osteopaths, acupuncturists, or physical therapists, may not provide massage services or act as a massage technician, 4, Hospitals, nursing homes, sanatoriums, or other health care facilities duly licensed by the State of California, 5, Barbers, beauticians, estheticians and manicurists who are duly licensed by the State of California while engaging in the practice within the scope of 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 said barber or beautician or in the case of a licensed manicurist, the massaging of the forearms, hands, calves and/or feet. 6, Accredited high schools, junior colleges, and colleges or universities whose coaches and trainers are acting within the scope of their employment. 7, Trainers of amateur, semi-professional or professional athletes or athletic teams when acting in such capacity,8, National Association of Athletic Trainers (NAT) who perform services pursuant to such licenses,B, This Chapter shall not apply to individuals administering massages or health treatment involving massage to persons participating in road races, track meets, triathlons and similar single occurrence athletic or recreational events; provided, that all of the following conditions are met:I, The massage services are made equally available to all 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,3, The massage services are provided at the site of the event and either during,immediately preceding or immediately following the event and the administering of massages is in full public view,4, The sponsors of the event have been advised of and have approved the provlSlon of massage services and the qualifications required of those performing such servIces,C, The following requirements of this Chapter shall apply to individuals administering massages in a massage establishment at which the patrons remain fully clothed at aU times and the administering of a massage is accomplished from an area which can be viewed by the general public at all times, 1. A person with a City-issued massage technician permit who meets the requirements of Section5.56,070 is at the site of the massage establishment at aU times,2, Any person providing a massage meets the foUowing minimum requirements and has a City-issued massage trainee permit.a, The applicant has completed 250 hours of instruction in a progressive curriculum of instruction in the massage specialty and health enhancement approach at a recognized school of massage with a state approved curriculum;b, Is at all times directly supervised by a City permitted massage technician who meets the requirements ofSection 5. 56,070,c, Has completed an application containing the information required from a massage technician and other than the educational and experience requirements complies with aU other requirements of a massage technician,d, Applications for a massage trainee permit shaU otherwise be denied in the same manner and upon the same basis as is set forth for a massage technician,3, The massage establishment is located in a zoning district which permits such use and the administering of a massage is visible from outside the massage establishment i,e" through a glass window), No massages can be administered in a room enclosed by waUs, curtains or other screens on aU sides,4, Bathroom facilities for patrons must be available within the commercial development in which the massage establishment is located,5, Massages are performed with patrons in a seated position,6, The establishment complies with the conditions contained III Section 5. 56,050,7, Massage trainee permit applications, issuance and denial shaU otherwise conform to the requirements of Section 5, 56,080,D, Commencing on the effective date of this Chapter, permits are to be issued in accordance with the provisions of this Chapter.E, Operator and permanent massage technician permits issued as of the effective date of this ordinance (but not business licenses) shaU be extended for 30 months from their current expiration date, but shaU be renewed in accordance with the provisions of this Chapter, Persons with existing operator and permanent massage technician permits, shaU be deemed to have met aU requirements for the issuance of an initial I I 5,56,140 Transfer. Duration and Renewal of Permits, A, No permit issued hereunder shall be transferable to any other person or establishment, provided, however, an additional location or change of location of a massage technician permit will be allowed upon prior written notice to the Chief of Police and payment ofthe appropriate transfer fee and compliance with all City laws and regulations, B, All operator, massage technician, massage trainee and off-premises massage permits shall expire thirty-six (36) months from issuance, Business licenses, if required, must be renewed annually,C, Applications to renew permits containing the information required by this Chapter for initial permits shall be filed with the Chief of Police before the expiration of the existing permit. Such renewal applications must be filed no later than sixty (60) days prior to the expiration of the permit to prevent a lapse ofthe permit.D, Each applicant for renewal shall file such information as may be required by the Chief of Police to update the information required for his or her original permit application, The applicant shall accompany the application for renewal with the appropriate filing fee,5,56,150 Suspension. Revocation. Denial and Appeal.A, Violation And Non-Compliance, The Chief of Police may refuse to renew a permit or may revoke or suspend an existing permit on the grounds that the applicant or permit holder has failed to comply with the permit conditions or requirements of this Chapter.If a suspended permit lapses during the suspension period, a new application must be made at the end of the suspension period, In any such case, the applicant or permit holder shall have the right to appeal to the City Council in the time and manner set forth in this Section,B, Revocation And Suspension of a Permit.1, The Chief of Police may revoke, suspend or refuse to renew any permit issued under this Chapter ifhe or she makes any of the findings for denial of a permit required by this Chapter or upon any subsequent violation of any provision within one year following prior suspension under subsection 2 below, or upon demonstrated inability to operate or manage the massage establishment in a law abiding manner, thus necessitating repetitive action by law enforcement officers,2, The Chief of Police may suspend any permit for a period of thirty (30)days or more for each violation ofthis Chapter,C, Notice.When the Chief of Police concludes that grounds for denial, suspension, revocation or refusal to renew a permit exist, the Chief of Police shall serve the applicant or permit holder,either personally or by certified mail, addressed to the business or residence address of applicant or permit holder as shown on the permit application, with a notice of denial or notice of intent to suspend, revoke or refuse to renew permit. This notice shall reasons for the proposed action, the effective date of the decision if no appeal is filed by applicant or permit holder and the right of the applicant or permit holder to appeal the decision to the City Council. If the decision is to suspend or revoke a permit, the notice of the decision shall be mailed at least 14 calendar days before the decision becomes effective, D. Appeal. The right to appeal to the City Council shall terminate upon the expiration of fifteen 15) days following the mailing of the Notice and ifnot appealed by that date, the decision of the Chief of Police shall become final. The City Council may preside over the hearing on appeal or, in the alternative, may appoint a hearing officer to conduct the hearing and receive relevant evidence, If the City Council determines to appoint a hearing officer, it shall determine whether the hearing officer's determination is binding or advisory to the City Council. If advisory, the hearing officer shall submit to the City Council findings and recommendations to be considered by the City Council. The City Council shall render a written decision within thirty (30) days from the date of the hearing or, in the event that a hearing officer has been appointed, within forty- five (45) days from the date on which the City Council receives the findings and recommendations of the hearing officer. The decision of the City Council, or in the event the hearings officer's determination is binding, the hearing officer's determination, shall be final and the written decision shall be forwarded to the appellant. 5.56.160 Violation and Penaltv, A. Every person, except those persons who are specifically exempt by this Chapter, whether acting as an individual, owner, employee of the owner, operator or employee of the operator, or whether acting as a participant or worker in any way, who gives a massage or operates a massage establishment or who advertises massage services within the City without first obtaining the applicable permit and business tax certificate from the City, or who violates any provision of this Chapter, shall be guilty of a misdemeanor. B, 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 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 and enjoinment thereof, in the manner provided by law, SECTION II: If any section, subdivision, paragraph, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that anyone (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional. 24 L_ '_.~__~_.'._.~,___.__~_~_"~ I I SECTION III: A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the Office of the City Clerk at least five (5) days prior to the City Council meeting at which this Ordinance is to be adopted, A summary of this Ordinance shall also be published once within fifteen (15) days after this Ordinance's passage in a newspaper of general circulation, published, and circulated in the City of Orange. The City Clerk shall post in the Office ofthe City Clerk a certified copy of the full text of such adopted Ordinance along with the names of those City Council members voting for and against the Ordinance in accordance with Government Code Section 36933, This Ordinance shall take effect thirty (30) days from and after the date of its final passage, ADOPTED this 26th day of April, 2005, iCL ATTEST: Lit 5 Mary E, M ,ity Clerk, ge STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF ORANGE ) I, MARY E, MURPHY, City Clerk of the City of Orange, California, do hereby certify that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the 12'h day of April, 2005, and thereafter at the regular meeting of said City Council duly held on the 26th day of April, 2005, was duly passed and adopted by the following vote, to wit: AYES: NOES: ABSENT: ABSTAIN: COUNCILMEMBERS: Smith, Ambriz, Murphy, Cavecche, Dumitru COUNCILMEMBERS: None COUNCILMEMBERS: None COUNCILMEMBERS: None 25