Chapter 5.46
PHYSICAL THERAPY – MASSAGE*
Sections:
5.46.010 Findings and purpose.
5.46.020 Definitions.
5.46.030 Massage establishment permit required.
5.46.040 Massage technician permit required.
5.46.050 Inspection.
5.46.060 Expiration of permit.
5.46.070 Denial of permit.
5.46.080 Suspension or revocation of permit.
5.46.090 Nontransferability of a massage establishment permit or massage technician permit.
5.46.100 Inspection of business records.
5.46.110 Massage establishment operational standards.
5.46.120 Register and permit – Number of employees.
5.46.130 Employment of and services rendered to persons under the age of 18 years prohibited.
5.46.140 Sale or transfer of massage establishment.
5.46.150 Exempt individuals.
5.46.160 Violations/penalties.
5.46.170 Applicability to existing permittees.
5.46.180 Immunity from prosecution.
5.46.190 Provisions nonexclusive.
5.46.200 Public nuisance.
5.46.210 Conflicting ordinance.
5.46.220 Severability.
* Prior legislation: Ords. 511 and 542.
5.46.010 Findings and purpose.
The city council finds and declares as follows:
A. The permit requirements and restrictions imposed by this chapter are reasonably necessary to protect the health, safety and welfare of the citizens of the city.
B. The city is authorized, by virtue of the State Constitution, Section 16000 of the Business and Professions Code, and Sections 51030 et seq. 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 massage establishments.
C. 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.
D. There is opportunity for acts of prostitution and other unlawful sexual activity to occur in massage establishments. Courts have long recognized massage as a pervasively regulated activity and that massage establishments are often brothels in disguise. 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 the police personnel such that more serious crimes may be prevented and more important laws enforced.
F. The regulations and restrictions contained in this chapter tend to discourage massage establishments from degenerating into houses of prostitution and the means utilized in this chapter bear a reasonable and rational relationship to the goals sought to be achieved. (Ord. 749 § 1, 2002).
5.46.020 Definitions.
The following words and phrases shall, for the purpose of this chapter, be defined as follows, unless it is clearly apparent from the context that another meaning is intended:
A. “Employee” means any person, other than a massage technician, who renders any service to a massage establishment and who receives compensation directly from the massage establishment permittee or the permittee’s agent.
B. “Massage” means any method of treating the external parts of the body for remedial health, or hygienic purpose. “Massage” shall include, but not be limited to, treatment by means of pressure, acupressure, friction, stroking, kneading, rubbing, tapping, pounding; treatment by means of stimulating the external parts of the body with any mechanical or electrical apparatus or appliance, or with rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparation; treatment by means of baths, including, but not limited to, Turkish, Russian, Swedish, Japanese, vapor, and shower; and any other type of system for treating or manipulating the human body with or without the character of bath.
C. “Massage activities” mean, but are not limited to, holding oneself out as a massage technician; being employed as a massage technician; acting as a massage technician; assigned to perform massage; or giving a massage.
D. “Massage establishment” means any establishment having a fixed place of business where any person engages in, conducts, carries on, or permits to be engaged in, conducted, or carried on as a regular function, any of the activities set forth in subsection (B) of this section. Any establishment engaging in or carrying on, or permitting any combination of, massage and health treatments, or massage and bathhouse, shower, hot tub, sauna, or other dry or wet heat shall also be deemed a massage establishment.
E. “Massage table” means a table specifically designed for reclining or setting for the administration of massage and which has a maximum width of four feet.
F. “Massage technician” means any individual who administers massage to another person for any consideration whatsoever.
G. “Out-call massage” means any business not otherwise exempt from this chapter that engages in or carries on a massage at a location that is not within a massage establishment.
H. “Permit” means the permit to operate a massage establishment as required by this chapter or a massage technician permit as required by this chapter.
I. “Person” means any individual, firm, association, partnership, corporation, joint venture, or combination of individuals.
J. “Recognized school of massage” means (1) any school or institution of learning which complies with and has been approved pursuant to the Private Postsecondary and Vocational Education Reform Act of 1989 (California Education Code Sections 94700 et seq.), or a successor statute thereto, which school or institution teaches the theory, ethics, practice, profession, or work of massage and which requires for graduation a resident course of study of not less than 500 hours before the student shall be furnished with a diploma or a certificate of completion; or (2) any school or institution of learning outside the state of California which school or institution (a) teaches the theory, ethics, practice, profession, or work of massage, (b) requires for graduation a resident course of study of not less than 500 hours before the student shall be furnished with a diploma or a certificate of completion, (c) complies with standards commensurate with those set forth in the Private Postsecondary and Vocational Education Reform Act of 1989, and (d) has been approved by the Board of Education, or similar governmental regulatory body, of the state in which it is located. Schools, which offer a correspondence course not requiring attendance, shall not be deemed a “recognized school of massage.”
K. “Specified anatomical areas” refers to genitals, cleft of the buttocks, perineum and anal regions.
L. “Specified criminal act” means (1) any violation of Section 266i, 315, 316, 318, or subdivision (b) of Section 647 of the Penal Code; (2) a violation of any felony offense involving the sale of a controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code; (3) any offense involving the use of force or violence upon a person; (4) any offense involving tax evasion, theft, embezzlement or moral turpitude; or (5) an offense committed in another state which, if committed or attempted in this state, would be punishable as one or more of the above-mentioned offenses.
M. “Transfer of ownership or control of a massage establishment” includes any of the following:
1. The sale, lease or sublease of the business;
2. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
3. The establishment of a trust, gift, or other similar legal devise which transfers ownership or control of the business, except for transfer by bequest or other operation of law upon the death of a person possessing the ownership or control. (Ord. 765 § 1, 2002; Ord. 749 § 1, 2002).
5.46.030 Massage establishment permit required.
A. An applicant for the operation of a massage establishment shall apply for and submit a completed application for a massage establishment permit. A massage establishment shall not be permitted to commence or continue business without the required valid permits and licenses.
B. An applicant for a massage establishment permit shall file a written, signed and verified application or renewal application on a form provided by the city manager. Such application shall contain:
1. The applicant’s legal name, aliases, current residential address and all previous residential addresses (other than post office box) for eight years immediately preceding the present address of the applicant;
2. Information regarding the ownership of the massage establishment:
a. The type of ownership of the business, i.e., whether by individual, partnership, corporation, or otherwise;
b. If the applicant is a corporation, the business name shall be set forth exactly as shown in its articles of incorporation. The applicant shall provide the date of its incorporation, and evidence that the corporation is in good standing under the laws of the state of California. The applicant shall show the name and residence address of each of the officers, directors, and each stockholder owning more than five percent of the stock of the corporation in addition to the name of the registered corporate agent and the address of the registered office for service of process;
c. If the applicant is a partnership, the applicant shall provide the name and residential address of each of the partners, including any limited partners, and a copy of the partnership agreement, if any. If the applicant is a limited partnership, the application shall include a copy of its certificate of limited partnership filed with the Secretary of State. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporations shall apply;
d. If the massage establishment is owned by an individual, the individual must sign the permit application as the applicant. If the massage establishment is owned by a corporation, partnership or other type of business entity providing for ownership or control by more than one person, the business entity shall designate one of its officers or general partners to act as its responsible managing officer. Such designated officer shall complete and sign all application forms required for an individual applicant under this chapter, but only one application fee shall be charged;
3. If the massage establishment is to be operated under a name other than that of the applicant, the applicant shall:
a. State the massage establishment’s fictitious business name; and
b. Submit the required registration documents for such fictitious business name;
4. The applicant’s fingerprints on a form provided by and in a manner prescribed by the police department and two portrait photographs of the applicant (two-inch by two-inch minimum size), taken within the 60 days immediately prior to the date the application is filed, clearly showing the applicant’s face. Any fees for the fingerprints and photographs shall be paid by the applicant. If the city approves the permit application, the city shall retain one photograph in the application file and affix the other photograph to the permit issued to applicant;
5. The applicant’s age, date and place of birth, California driver license number (or California identification card number, if applicant does not have a California driver license), and applicant’s state or federally issued tax identification number;
6. Whether the applicant, or any proposed massage technicians, employees, owners or operators of the massage establishment including, if the applicant is a corporation, any of its officers or directors, have ever been convicted of a specified criminal act, and, if so, the specified criminal act involved, the date, place, and nature of each conviction or plea of nolo contendere and the identity of the convicting jurisdiction, or whether any such person is required to register under the provisions of Section 290 of the Penal Code;
7. A detailed description of the operation and type of services to be provided by the massage establishment and the number of massage technicians and other persons to be employed by the business;
8. Hours of operation;
9. a. The address of the proposed massage establishment location and floor plan indicating how the use is proposed to be conducted within the building;
b. The names and residential addresses of all persons who will manage or supervise the massage establishment;
c. The amount and location of security, security cameras, both within the interior and exterior premises of the massage establishment;
d. A list of names and residential addresses of all massage technicians who will provide massage services at the massage establishment;
e. A description of any other business operated on the same premises, or within the city or the state of California that is owned or operated by the applicant;
f. Applicant’s complete business, occupation and employment history for eight years preceding the date of application, including, but not limited to, the massage or similar business history and experience of the applicant;
g. The complete massage permit history of the applicant, including but not limited to whether the applicant has ever had any permit or license issued by any agency, board, city, county, territory, or state, the date of issuance of such permit or license; whether such license was denied, revoked or suspended, or if a vocational or professional license or permit was denied, revoked or suspended, and the reasons therefor;
h. The name and address of the 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 acknowledgement from the owner of the property that a massage establishment will be located on his or her property;
i. For a renewal application, the applicant shall attach a copy of the permit to be renewed and shall indicate any changes to any information filed with the previous application;
j. Applicant’s authorization for the city, its employees, agents, and contractors, to seek information and conduct investigations to determine the truthfulness of the statements and information set forth in the application and applicant’s qualifications for a permit;
k. A notarized affidavit signed by applicant stating that applicant has reviewed and is familiar with the requirements set forth in this chapter and that all information contained in the application is true and correct.
C. The applicant shall notify and cause the Los Angeles County department of health services to inspect the premises sought to be permitted to ensure compliance with all applicable health laws. The applicant shall submit a copy of the Los Angeles County department of health services inspection report to the city’s business license division within 45 days after the date of filing a complete application with the city. All fees charged by the Los Angeles County department of health services shall be incurred by the applicant separately from any other fee or charge set forth in this chapter.
D. All applications for a permit or renewal shall be filed with the city business license division subject to investigation by the police department. Each application shall be accompanied by a nonrefundable fee for filing or renewal in an amount determined by resolution of the city council, which fees will be used to defray the costs of investigation, inspection and processing of such application. Upon receipt of an application properly filed with the city business license division and upon payment of the nonrefundable application fee, the city business license division shall immediately stamp the application as received and shall immediately thereafter send photocopies of the application to the police department. The police department shall promptly conduct an investigation of the applicant and the proposed massage establishment permit application in accordance with its responsibilities under the law and as set forth in this chapter. At the conclusion of its investigation, the police department shall submit the results of its investigation on the photocopy of the application, dated, signed and returned to the city business license division. The police department’s investigation shall be completed within 45 days of the applicant’s filing of a complete application with the city. An application shall not be deemed to be complete until the city has received payment of the required application fee. A permit shall automatically be issued if a decision has not been made by the city business license division on the application for a permit within 60 days of receipt of a completed application. Any permit issued pursuant to this subsection shall be deemed conditional pending the city’s receipt of the California Department of Justice report on the fingerprints submitted by the applicant. If the fingerprint report demonstrates that the applicant has made any false, misleading or fraudulent statement of material fact in the application or in any report or record relevant to the permit required to be filed with the police department, or other department of the city, the permit shall be subject to revocation pursuant to BGMC 5.46.080.
E. In considering an application for a permit pursuant to this chapter, the city business license division shall approve the permit, unless it finds that one or more of the following is true:
1. The proposed massage establishment and any building, structure, equipment and location to be used by the proposed massage establishment does not comply with the requirements and standards of the health, zoning, fire, and safety laws, and any other applicable laws, of the state of California or of the city;
2. Any applicant, or any employee, agent, partner, director, officer, stockholder or manager of applicant has knowingly made any false, misleading or fraudulent statement of material fact in the application or in any report or record relevant to the permit required to be filed with the police department, or other department of the city;
3. Any applicant, or any employee, agent, partner, director, officer, stockholder or manager of applicant has had any type of massage establishment permit or massage technician permit denied or revoked for cause by any public entity within eight years of filing the application;
4. The applicant is under 18 years of age;
5. The applicant is delinquent in paying city business license fees or penalties owed in relation to any massage establishment;
6. The application or permit fee required by this chapter has not been paid; or
7. The applicant, or any proposed massage technician, employee, owner or operator of the massage establishment, including, if the applicant is a corporation, any of its officers or directors, has been convicted of a specified criminal act, or any such person is required to register under the provisions of Section 290 of the Penal Code.
F. Applicants for a permit under this section shall have a continuing duty to promptly supplement application information required by this section in the event that the information changes in any way from what is stated on the application. Applicant’s failure to supplement the application on file with the city business license division within 30 days from the date the information changes shall be grounds for suspension of the permit.
G. The fact that an applicant possesses other types of state or city permits and/or licenses does not exempt the applicant from the requirement of obtaining a massage establishment permit.
H. Any massage establishment requiring a massage establishment permit shall also obtain a business license pursuant to Chapter 5.12 BGMC. (Ord. 749 § 1, 2002).
5.46.040 Massage technician permit required.
A. A massage technician shall not engage in or participate in any massage activities in the city unless the massage technician has applied for and been issued a current massage technician permit.
B. An applicant for a massage technician permit shall file a written, signed and verified application or renewal application on a form provided by the city manager. Such application shall contain:
1. Applicant’s legal name and any other names or aliases used by the applicant;
2. Applicant’s age, date of birth, and place of birth;
3. Applicant’s current residential address and telephone number;
4. Applicant’s California driver’s license number or California identification card number;
5. Satisfactory written proof that the applicant is at least 18 years of age;
6. Applicant’s fingerprints on a form provided by and in a manner prescribed by the police department and two portrait photographs of the applicant (two-inch by two-inch minimum size), taken within the 60 days immediately prior to the date the application is filed, clearly showing the applicant’s face. Any fees for the fingerprints and photographs shall be paid by the applicant. If the city approves the permit application, the city shall retain one photograph in the application file and affix the other photograph to the permit issued to applicant;
7. A statement detailing the applicant’s employment and permit history for the five years immediately preceding the date of the filing of the application, including whether the applicant was previously licensed, permitted, or authorized to conduct business or was seeking such license, permit, or authorization to conduct business in this or any other county, city, or state, and whether the applicant has ever had such license, permit, or authorization to conduct business, denied, revoked, or suspended. In the event of any such denial, revocation, or suspension, state the date, the name of the issuing or denying jurisdiction, and describe in full the reasons for the denial, revocation, or suspension;
8. Whether the applicant has ever been convicted of a specified criminal act, and, if so, the specified criminal act involved, the date, place, and nature of each conviction or plea of nolo contendere and the identity of the convicting jurisdiction, or whether the applicant is required to register under the provisions of Section 290 of the Penal Code;
9. If the application is made for the purpose of renewing a permit, the applicant shall attach a copy of the permit to be renewed;
10. For a renewal of a permit under this section, the applicant shall also indicate any changes to the application since the filing of the initial application;
11. Applicant’s authorization for the city, its employees, agents, and contractors to seek information and conduct investigations to determine the truthfulness of the statements and information set forth in the application and applicant’s qualifications for a permit;
12. A certificate from a medical doctor, licensed to practice in the state of California, stating that the applicant has, within 30 days immediately preceding the date of application, been examined and found to be free from any communicable or contagious disease;
13. An original or certified copy of a diploma or certificate of graduation from a recognized school of massage;
14. Proof that the applicant has, within 30 days immediately preceding the date of application, passed a written examination dealing with the requirements of this chapter to ensure a complete understanding of the massage technician’s duties prior to the issuance of the massage technician’s permit. A score of 70 percent or better is required on each section of the written examination. An applicant who fails to pass the examination shall not be eligible to take another examination until 60 days after the previous examination. An applicant who fails to pass upon a second attempt shall not again be eligible until six months thereafter. An additional processing fee shall be required to be filed with the city manager and/or his/her designee prior to each re-examination in accordance with the fee resolution. The examination will be administered in the English language. In the event the applicant requires that the examination be given in another language, the applicant must, on his or her own, make arrangements with a court-certified and Bell Gardens police department-approved interpreter to interpret the ordinance examination. Proof of court certification must be provided to the Bell Gardens police department no less than five days prior to the administration of the examination;
15. In addition to the examination required pursuant to subsection (B)(14) of this section, the applicant must take and pass a written and practical examination prior to the issuance of the massage technician permit. A score of 70 percent or better is required in each section of the written test. The examination shall meet the following requirements:
a. The examination shall fairly determine the ability of the applicant to perform the work which the applicant will be authorized to do by the permit applied for, and shall include, but is not limited to, the following subjects: anatomy, physiology, pathology, hygiene, contraindications, sanitation, massage theory; and ethics of massage practice.
b. The examination shall be prepared, conducted and graded by the city, or, in its sole discretion, by a competent instructor certified by the Council for Private Postsecondary and Vocational Education pursuant to Education Code Section 94311.1.
c. The city manager and/or his/her designee shall establish standards and procedures governing the administration and grading of all examinations and shall exercise such supervision as may be necessary to ensure compliance therewith.
d. The examination shall be administered in the English language. In the event that the applicant requires that the examination be given in another language, the applicant must, on his or her own, make arrangements with a court-certified and Bell Gardens police department-approved interpreter to interpret the examination. Proof of valid court certification must be provided to the city manager and/or his/her designee no less than five days prior to the administration of the examination;
16. An applicant who fails to pass the examination shall not be eligible to take another examination until 60 days after the previous examination. An applicant who fails to pass upon a second attempt shall not be again eligible until six months thereafter. An additional processing fee shall be required to be filed with the city manager prior to each re-examination in accordance with the fee resolution;
17. An affidavit signed by applicant and notarized stating that applicant has reviewed and is familiar with the requirements set forth in this chapter.
C. All applications for a permit or renewal shall be filed with the city business license division subject to investigation by the police department. Each application shall be accompanied by a nonrefundable fee for filing or renewal in an amount determined by resolution of the city council, which shall be used to defray the costs of investigation, inspection and processing of such application.
D. The report of the police department regarding a permit application shall be issued within 45 days of filing a complete application. At the conclusion of the investigation, the results shall be indicated on the photocopy of the application, dated, signed and returned to the city business license division. A permit shall automatically be issued if a decision has not been made by the city business license division on the application for a permit within 60 days of receipt for a completed application. Any permit issued pursuant to this subsection shall be deemed conditional pending the city’s receipt of the California Department of Justice report on the fingerprints submitted by the applicant. If the fingerprint report demonstrates that the applicant has made any false, misleading or fraudulent statement of material fact in the permit application or in any report or record required to be filed with the police department, or other department of the city, the permit shall be subject to revocation pursuant to BGMC 5.46.080.
E. Following the police department’s investigation, the city business license division shall issue a permit or renewal, unless one or more of the following are found to be true:
1. The applicant has knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit or in any report or record relevant to the permit required to be filed with the police department, or other department of the city;
2. The applicant had any type of massage establishment permit or massage technician permit revoked by any public entity within two years of the date of the application;
3. The applicant is under 18 years of age;
4. The applicant is delinquent in paying city fees or penalties owed in relation to the massage technician permit;
5. The application or permit fee required by this chapter has not been paid; and
6. That the applicant has been convicted of a specified criminal act, or is required to register under the provisions of Section 290 of the Penal Code.
F. The fact that an applicant possesses other types of state or city permits and/or licenses does not exempt the applicant from the requirement of obtaining a massage technician permit.
G. Any application for a permit pursuant to this chapter is considered to be a ministerial act. Issuance or denial of the permit under this chapter is not subject to administrative appeal. The decision of the city business license division is subject to prompt judicial review by a court of competent jurisdiction in accordance with California law. (Ord. 765 §§ 2, 3, 4, 2002; Ord. 749 § 1, 2002).
5.46.050 Inspection.
A permittee under this chapter shall permit representatives of the police department, health department, fire department, code enforcement, city manager, or other city departments or agencies to inspect any and all areas within the massage establishment, regardless of whether such area is occupied or in use, on an unscheduled basis, for the purpose of assuring compliance with the law, at any time the massage establishment is occupied or opened for business. A person who operates a massage establishment or his or her agent or employee is in violation of the provisions of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or opened for business. (Ord. 749 § 1, 2002).
5.46.060 Expiration of permit.
Each permit issued under this chapter shall expire one year from the date of issuance and may be renewed only by making an application as provided in this chapter. Application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the permit will not be affected. A renewal application shall contain all materials required for an initial permit, including fingerprints and recent photographs of the renewal applicant. (Ord. 749 § 1, 2002).
5.46.070 Denial of permit.
When the city business license division denies the issuance or renewal of a permit, the applicant shall not be issued a permit under this chapter for one year from the date of denial. If, subsequent to denial, the city or its designee finds that the basis for denial has been corrected, the permit shall be issued or renewed within 90 days of such finding. Denial of an application made solely because the application is incomplete shall not be subject to the waiting periods as provided herein. (Ord. 749 § 1, 2002).
5.46.080 Suspension or revocation of permit.
A. A permit issued pursuant to this chapter may be suspended or revoked in accordance with the procedures provided in BGMC 5.12.110 through 5.12.130 and upon the following grounds:
1. The building, structure, equipment, and location used fails to comply with the requirements or fails to meet the standards of the health, zoning, fire and safety laws of the state of California, or of the ordinances of the city of Bell Gardens. In the event of such statute, code, ordinance, or regulation violation, the city, or its designee, shall allow the permittee a seven-working-day period in which to correct the violation. If the permittee fails to correct the violation before the expiration of the seven-working-day period, the city, or its designee, shall forthwith suspend the permit and shall notify the permittee of the suspension. The suspension shall remain in effect until the violation has been corrected;
2. The permittee, his or her employee, agent, partner, director, officer, stockholder or manager has knowingly made any false, misleading, or fraudulent statements of material facts in the application for a permit, or in any report or record relevant to the permit required to be filed with the police department, or other department of the city;
3. The permittee has had any type of massage establishment or massage technician permit revoked by any public entity within two years of the date the permit was issued;
4. The permittee is convicted of tax violations for any taxes or fees related to a massage establishment;
5. The permittee, or any massage technician, employee, owner, or operator of the massage establishment has been convicted in a court of competent jurisdiction of a specified criminal act or is required to register under the provisions of Section 290 of the Penal Code;
6. Sexual intercourse, sodomy, oral copulation, masturbation, prostitution or other lewd acts occur or have occurred at the massage establishment;
7. The massage establishment has employed minors;
8. The permittee, or any employee, agent, partner, director, officer, stockholder, or manager of permittee, has violated any provision of this chapter;
9. The permittee, or any employee, agent, partner, director, officer, stockholder, or manager of permittee, refused to allow the lawful inspection of the premises; and
10. The permittee failed to abide by a disciplinary action previously imposed by a city official.
B. Once a permit is revoked, the revocation shall continue for one year and the permittee shall not be issued a massage establishment permit or massage technician permit for one year from the date the revocation became effective. If, subsequent to revocation, the city manager finds that the basis for revocation under this chapter has been corrected, the applicant shall be granted a permit if at least 90 days have elapsed since the date revocation became effective. (Ord. 749 § 1, 2002).
5.46.090 Nontransferability of a massage establishment permit or massage technician permit.
A permittee shall not transfer a massage establishment permit or a massage technician’s permit to another, nor shall a permittee operate a massage establishment under the authority of a permit at any place other than the address designated in the application. Any permit that is transferred in violation of this section shall immediately become null and void. (Ord. 749 § 1, 2002).
5.46.100 Inspection of business records.
If the city manager believes that a regular and substantial portion of a business operating within the city has the characteristics of a massage establishment, regardless of whether the business has been issued a current massage establishment permit, then the city manager may require that the business make available for review by the city’s authorized representative, at reasonable times and places, complete records of the businesses’ transactions, including its sales, receipts, purchases and other expenditures. In the event such records cannot be made available within the city of Bell Gardens or within a distance of 50 miles therefrom, the operator of the business is hereby required to reimburse the city for the cost of all transportation, lodging, meals, portal-to-portal travel, time and other incidental costs reasonably incurred by the city in performing said audit. (Ord. 749 § 1, 2002).
5.46.110 Massage establishment operational standards.
It is unlawful for any person to commence, conduct, own, manage, operate, be in charge of, participate in or sponsor a massage establishment, which is not fully in compliance with the following operational standards:
A. Hours and Conditions of Operation.
1. No massage establishment shall operate nor shall any massage be administered in any massage establishment between the hours of 10:00 p.m. and 8:00 a.m. A massage begun any time before 10:00 p.m. must nevertheless terminate prior to 10:00 p.m. The hours of operation must be displayed in a conspicuous public place in the lobby within the massage establishment and in the front window clearly visible from the outside of the massage establishment.
2. No massage establishment may be open for business unless there is at least one massage technician, holding a current, unrevoked permit, on the premises at all times.
B. Posting Requirements.
1. The massage establishment permit, city business license, and a copy of the permit of each and every massage technician providing massage services in the massage establishment shall be displayed in an open and conspicuous public place in the reception area of the premises. Permits shall be displayed such that the photographs affixed thereto shall not be obstructed from view.
2. A list of services available and the cost of such services shall be posted in an open and conspicuous public place in the reception area of the premises. No owner, operator, responsible managing employee, manager, or permittee in charge of or in control of the massage establishment shall permit, and no massage technician shall offer to perform, any services other than those posted.
3. A sign shall be posted outside the main entrance identifying the establishment as a massage establishment; provided, that all such signs shall comply with the sign requirements of the city.
4. The building entrance to a massage establishment shall clearly and legibly post a notice indicating that persons under 18 years of age are precluded from entering the premises. Said notice shall be constructed and conspicuously posted to the satisfaction of the community development director or his or her designee.
C. Building and Facilities.
1. A minimum of one tub or shower and one toilet and wash basin shall be provided for the patrons in every massage establishment; however, if male and female patrons are to be served simultaneously at the establishment, separate dressing, bathing and toilet facilities shall be provided for male and female patrons. Hot and cold running water under pressure shall be provided to all wash basins, bathtubs, showers, and similar equipment.
2. A clean and nonabsorbent waste container with tight-fitting covers shall be provided in each toilet room for the storing of waste matter and shall be maintained in a clean and sanitary condition.
3. Each wash basin shall be provided with soap or detergent and sanitary towels placed in permanently installed dispensers.
4. In those establishments where steam room or sauna baths are provided and male and female patrons are served simultaneously, separate steam rooms or sauna rooms shall be provided to each sex. Each steam room and sauna shall be clearly designated as being for a particular sex.
5. In steam rooms and rooms containing tubs or showers, the shower areas shall be finished with a smooth, hard, nonabsorbent surface to a height of not less than 70 inches above the drain inlet in accordance with the city building code.
6. Walls of toilet and bathing facilities shall be smooth, waterproof and kept in good repair.
7. All walls, ceilings, floors, pools, showers, bathtubs, wet and dry heat rooms, steam rooms, tables and all other physical facilities shall be in good repair and maintained in a clean and sanitary condition.
8. Wet and dry heat rooms, steam or vapor rooms or cabinets, showers and toilet rooms shall be thoroughly cleaned at least once each day the business is in operation. Bathtubs shall be thoroughly cleaned after each use with disinfectant approved by the county health department.
9. All building, plumbing and electrical installations shall be installed under permits issued by the city building official and such installations shall be installed in accordance with the city building codes.
10. During the operation of the massage business, a light level of no less than five foot candles shall be maintained at every point within each room or enclosure where massage services are given or administered. At least one artificial light of not less than 40 watts shall be provided in each room or enclosure of the establishment capable of being occupied by a person.
11. No massage shall be given within any cubicle, room, booth, or other area of a massage establishment that is fitted with a door. A curtain covering the entire entrance to any cubicle, room, booth or other area shall be installed.
12. Adequate ventilation as required by the Uniform Building Code shall be provided for cubicles, rooms and areas provided for patron’s use, which are not serviced directly by required window or mechanical systems of ventilation.
13. Each entrance to the massage establishment, regularly used by the public for ingress or egress to such establishment, shall be visible street or highway frontages only and shall remain unlocked during business hours. Exits for fire safety purposes may be allowed where deemed necessary by the appropriate safety agency.
D. Instruments and Equipment.
1. Disinfecting agents and sterilizing equipment sufficient to assure the cleanliness and safe condition thereof shall be provided for any instruments used in performing any massage.
2. All massages shall be performed on massage tables. No furniture designed for sleeping shall be located in rooms used for massages. Pads used on massage tables shall be covered with a durable washable plastic or other waterproof material acceptable to the county health department.
3. Cleanable and nonabsorbent waste containers with tight fitting covers shall be provided for the storing of all waste matter and shall be maintained in a clean and sanitary condition.
4. Closed cabinets or containers shall be provided for the storage of laundered towels and linens. Nonabsorbent containers or laundry bags shall be provided for damp or soiled linen, and linen shall be kept therein until removed for laundering.
5. All establishments shall be so equipped, maintained and operated as to effectively control the entrance, harborage, and breeding of vermin, including flies. When flies or other vermin are present effective control measures shall be instituted for their control or elimination.
E. Linens and Coverings.
1. Clean and sanitary towels, sheets and linens shall be provided for each patron receiving massage services. No common use of towels or linens shall be permitted and reuse is prohibited unless they have been first relaundered. Heavy white paper may be substituted for sheets; provided, that such paper is used only once for each person, then discarded into a sanitary receptacle.
2. Each establishment shall provide to all patrons clean, sanitary and opaque linens or coverings capable of covering the patron’s specified anatomical areas. No common use of such coverings shall be permitted, and reuse is prohibited unless the coverings have been adequately cleaned.
3. Based upon the maximum number of patrons for which the massage establishment can render on-site, simultaneous massages, there shall be, at all times of operation, five towels for each patron, available for the personal use of the patron.
4. Based on the number of employees required to serve the maximum number of patrons for which the massage establishment can render on-site, simultaneous massages, there shall be, at all times of operation, five towels for each employee. Such towels shall be clean, freshly laundered and disinfected.
F. Record-Keeping Requirements.
1. Every person operating a massage establishment shall keep a record of the date and hour of each treatment or service, the name and address of the patron, the name of the massage technician administering such treatment or service, and a description of the treatment or service rendered. The records shall be open to inspection by city, county or state officials charged with the specific enforcement of this chapter or with the general responsibility of preventing the spread of communicable or contagious disease and maintaining the public health. The information contained in such records shall be used only to ensure and enforce compliance with this chapter or any other applicable state or federal laws and shall remain confidential. Failure to record such information or knowingly falsifying such records may be grounds for suspension or revocation of a massage establishment or massage technician permit. The chief of police or that official’s designee shall be permitted to periodically inspect the treatment and service records to ensure compliance with this chapter. The records shall be maintained for a period of four years.
2. The massage business operator shall prepare or cause to be prepared a written record of the cleaning and disinfecting of areas used for giving massage services. Entries shall be made into the record within five minutes of the completion of the cleaning or disinfecting event being recorded.
G. Employees/Massage Technicians.
1. All employees, including massage technicians, at all times while on the premises of the massage establishment, shall be clean and shall wear clean, nontransparent outer garments covering the body from knee to neck. The use of such garments shall be restricted to the massage establishment.
2. Separate dressing rooms for each sex, equipped with individual lockers for each employee, shall be available on the premises.
a. No massage establishment operator or massage technician shall, while on the premises of a massage establishment and in the presence of a patron or customer, appear in such attire so as to expose specified anatomical areas.
b. No massage technician, while performing any task or service associated with the massage business, shall be present in any room with another person, unless the person’s specified anatomical areas are fully covered.
H. Prohibited Conduct.
1. No owner, operator, responsible managing employee, manager or permittee in charge of or in control of a massage establishment shall permit, during the course of any service or task associated with the operation of a massage establishment, any person to massage or intentionally touch or make physical contact with specified anatomical areas of another person, nor shall any employee, agent, or massage technician massage, intentionally touch, or make physical contact with specified anatomical areas of another person.
2. No person other than the person receiving a massage and the administering massage technician may be within a room in a massage establishment wherein a massage is being given.
3. During hours of operation, no person other than a valid permit holder under this chapter or a customer for whom the information required pursuant to subsection (F)(1) of this section has been recorded shall be allowed beyond the front lobby of the massage establishment, which shall be located directly inside the front door entrance of the massage establishment.
4. No person shall enter, be, or remain in any part of the massage establishment while in the possession of, consuming, or using alcoholic beverages or drugs, except pursuant to a prescription for such drugs. The owner, operator, responsible managing employee, manager or permittee shall not permit any person in violation of this subsection to enter or remain upon the premises.
5. No person shall enter, be, or remain in any part of the massage establishment while in the possession of a condom, nor shall the storage of condoms be permitted within the massage establishment.
6. The sale or serving of food or beverage or the conducting of nonmassage business on the premises of the massage establishment is prohibited.
7. No massage establishment may operate as a school of massage or use the same facilities as that of a school of massage.
8. Out-call massage services or massage services not rendered at a permitted massage establishment are prohibited. (Ord. 749 § 1, 2002).
5.46.120 Register and permit – Number of employees.
The operator, owner or responsible managing agent of a massage establishment shall maintain a complete and current register of the names, residence addresses, and permit numbers (if applicable) of all massage technicians and persons employed on the premises and the name and residence address of the manager or managing employee principally in charge of the operation of the massage establishment. Such register shall be kept on the premises of the massage establishment and shall be available for inspection during regular business hours by any police officer or health officer or other official charged with enforcement of this chapter. (Ord. 749 § 1, 2002).
5.46.130 Employment of and services rendered to persons under the age of 18 years prohibited.
A. It shall be unlawful for any permittee, operator, or other person in charge of any massage establishment to employ, or provide any service that requires a permit pursuant to this chapter to any person who is not at least 18 years of age.
B. It shall be unlawful for any permittee, operator or other person in charge of any massage establishment to permit to enter, or remain within the massage establishment, any person who is not at least 18 years of age. (Ord. 749 § 1, 2002).
5.46.140 Sale or transfer of massage establishment.
Upon sale or transfer of ownership or control of a massage establishment, as defined herein, any permit issued pursuant to this chapter shall be null and void. A new application shall be made by any person, firm or entity desiring to own or operate the massage establishment. (Ord. 749 § 1, 2002).
5.46.150 Exempt individuals.
The requirements of this chapter do not apply to the following while engaged in performing the duties of their respective professions:
A. Physicians, surgeons, chiropractors, osteopaths, acupuncturists or physical therapists who are licensed to practice their respective professions in the state of California.
B. A registered nurse or licensed vocational nurse, licensed to practice under the laws of the state of California, working on the premises of, or under the 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 or act as a massage technician.
C. Employees of hospitals, nursing homes, sanatoriums, or other health care facilities duly licensed by the state of California, while working on the premises of such state-licensed facilities.
D. A trainer employed by any amateur, semiprofessional or professional athlete or athletic team.
E. Barbers, beauticians, or manicurists who are duly licensed by the state of California while engaging in practices within the scope of such license, 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 forearm, hands, calves, and/or feet.
F. Accredited high schools, junior colleges, and colleges or universities whose coaches and trainers are acting within the scope of their employment.
G. A person licensed to practice any healing art under the provisions of Division 2 (commencing with Section 500) of the Business and Professions Code when engaging in such practice within the scope of such license.
H. Recognized schools of massage as defined herein.
Any person claiming such exemption shall furnish satisfactory evidence that that person is entitled to such exemption, including, if applicable, a citation to the particular provision of the Business and Professions Code upon which that person relies. (Ord. 765 § 5, 2002; Ord. 749 § 1, 2002).
5.46.160 Violations/penalties.
A. Any firm, corporation or person, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this chapter, shall be guilty of a misdemeanor, and any conviction thereof shall be punishable by a fine of no less than $1,000 or by imprisonment for no less than six months, or by both such fine and imprisonment.
B. Nothing herein shall prevent or restrict the city from taking such other lawful action in any court of competent jurisdiction as is necessary to prevent or remedy any violation or noncompliance. Such other lawful actions shall include, but shall not be limited to, an equitable action for injunctive relief or an action at law for damages. If an injunction must be sought, attorney’s fees and costs will be assessed at the discretion of the court against the party subject to said injunction.
C. Nothing in this section shall be construed to prohibit the city from prosecuting any violation of this chapter by means of code enforcement procedures established pursuant to the laws of the state of California and the city of Bell Gardens.
D. Any violation of the provisions of this chapter shall constitute a separate offense for each and every day during which such violation is committed or continued.
E. Any massage establishment shall be subject to the following restrictions:
1. A person commits a misdemeanor if he or she operates or causes to be operated a massage establishment without a permit.
2. A person commits a misdemeanor if he or she operates or causes to be operated a massage establishment, regardless of whether or not a permit has been issued for said business under this chapter, and advertises the presentation of any activity prohibited by any applicable state statute or local ordinance.
3. A person commits a misdemeanor if he or she operates or causes to be operated a massage establishment, regardless of whether or not a permit has been issued for said business under this chapter, and allows such business to remain open for business, or to permit any employee to solicit or provide massage services, between the hours of 10:00 p.m. and 8:00 a.m.
4. A person commits a misdemeanor if, working as an employee or a massage technician of a massage establishment, regardless of whether or not a permit has been issued for said business under this chapter, said person engages in a service, or solicits a service, between the hours of 10:00 p.m. and 8:00 a.m.
5. A person commits a misdemeanor if he or she operates or causes to be operated a massage establishment, regardless of whether or not a business license has been issued for said business under this title, and said person knows that or should know that:
a. The business does not have a massage establishment permit under this chapter;
b. The massage establishment has a permit which is under suspension or has been revoked; or
c. The massage establishment has a permit which has expired. (Ord. 749 § 1, 2002).
5.46.170 Applicability to existing permittees.
A. Any massage establishment lawfully operating on the effective date of the ordinance codified in this chapter shall apply for a massage establishment permit under the provisions of this chapter no later than six months from the effective date of the ordinance codified in this chapter and shall comply with all the requirements that are prerequisites for issuance of a permit before such permit will issue. Possible extension of six additional months may be granted by the planning commission by showing that compliance with the provisions of this chapter imposes an extreme financial hardship on the owner of the massage establishment. Any request for an extension shall be made within 30 days of the effective date of this chapter. The planning commission may condition any extension on compliance with requirements of this chapter that do not impose extreme financial hardship.
B. Existing massage technician permits shall continue in effect until expiration. All existing massage technician permit holders shall have six months from the effective date of the ordinance codified in this chapter to meet and comply with the requirement that a massage technician receive a diploma or certificate of graduation from a recognized school of massage. (Ord. 749 § 1, 2002).
5.46.180 Immunity from prosecution.
The city and its designee, the police department and all other departments and agencies and all other city officers, agents and employees charged with enforcement of state and local laws and codes shall be immune from civil or criminal prosecution for reasonably and in good faith entering upon a massage establishment while acting within the scope of authority, conferred by this chapter. (Ord. 749 § 1, 2002).
5.46.190 Provisions nonexclusive.
The provisions set forth in this chapter are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other ordinances, statutes, or regulations pertaining to the operation of massage establishments as adopted by the city council of the city of Bell Gardens, the county of Los Angeles, or the state of California. (Ord. 749 § 1, 2002).
5.46.200 Public nuisance.
In addition to the penalties above, any massage establishment which is operating in violation of this chapter or any provision thereof is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. (Ord. 749 § 1, 2002).
5.46.210 Conflicting ordinance.
If any city ordinance or regulation or any part thereof is found in conflict with the provisions of this chapter, the provisions of this chapter shall apply. (Ord. 749 § 1, 2002).
5.46.220 Severability.
If any provision of this chapter is held to be invalid, void, or unconstitutional, it is the intent of the city council that such invalidated portion be severable from the remainder and that the remainder be given full force and effect. (Ord. 749 § 1, 2002).