Chapter 5.48 MASSAGE ESTABLISHMENTS AND SERVICES

Chapter 5.48
MASSAGE ESTABLISHMENTS AND SERVICES

Sections:

Article I. General Provisions

5.48.010 Findings and purpose.

5.48.020 Definitions.

5.48.030 Exceptions.

5.48.040 Business license/other permits required.

Article II. Massage Therapists and Practitioners

5.48.050 State certificate required.

Article III. Certificates of Operation, Operator and Work Permits

5.48.060 Application – General provisions.

5.48.070 Certificate of operation.

5.48.080 Operator and work permits.

5.48.090 Changed information.

5.48.100 Revocation of permits.

5.48.110 Appeals to city manager.

5.48.120 Reapplication.

5.48.130 Notices.

Article IV. Operation and Facility Requirements

5.48.140 Operational requirements.

5.48.150 Building and facility requirements.

5.48.160 Inspections.

5.48.170 Violation – Nuisance/remedy.

Article V. Previous Massage Technician Provisions

5.48.180 Applicability.

5.48.190 Definitions.

5.48.200 Massage technician permit required.

Article I. General Provisions

5.48.010 Findings and purpose.

The city council finds and declares as follows:

A. The requirements and restrictions imposed by this chapter are reasonably necessary to protect the health, safety and welfare of the citizens of the city.

B. This chapter is enacted pursuant to the provisions of the State Constitution, Sections 51030 et seq. of the Government Code, Sections 4600 through 4620 and Section 16000 of the Business and Professions Code, and Section 13 of the Chiropractic Act (initiative measure approved by the electors November 7, 1922, as amended) and SB 731 (2008).

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, lewdness, 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 and would thereby benefit the public health.

E. The provisions of this chapter are intended to enhance the efficient processing of permits for massage establishments, operators, and employees, and the ongoing regulation of those permittees by the Gardena police department. The provisions of this chapter in no way limit the authority of the police department to inspect massage establishments or conduct investigations to ensure permittees are complying with applicable rules and regulations.

F. The restrictions and requirements contained in this chapter are intended to be in addition to the requirement of a valid business license issued pursuant to Chapter 5.04.

G. The regulations and restrictions contained in this chapter are intended 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 within the confines allowed by state law.

H. The provisions of this chapter are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any state or local laws or regulations that are uniformly applied to other professional or personal service businesses. (Ord. 1714 § 1 (part), 2010)

5.48.020 Definitions.

For the purpose of this chapter, the following words and phrases shall be construed to have the meanings set forth in this section, unless it is apparent from the context that a different meaning is intended:

“Chief of police” means the chief of police of the city of Gardena, or his/her designee.

“City” means the city of Gardena.

“City manager” means the city manager of the city of Gardena, or his/her designee.

“Conviction,” or “convicted” means a guilty plea or verdict, or a conviction following a plea of nolo contendere, where the time for appeal has elapsed or the judgment of conviction has been affirmed on appeal, irrespective of an order granting probation following that conviction, suspending the imposition of sentence, or of a subsequent order under Section 1203.4 of the Penal Code allowing the applicant to withdraw his or her plea of guilty and to enter a plea of not guilty, or dismissing the accusation or information.

“Employee” means any person who renders any service, with or without compensation, to a massage establishment relating to the day-to-day operation of the massage establishment, including a person who provides such services as an independent contractor.

“Exempt massage establishment” means a massage establishment that is a sole proprietorship where the sole proprietor has a state certificate and is the only person in that business providing massage services or a massage establishment or business that employs or uses only state certified persons to provide massage services in accordance with Business and Professions Code Section 4612(b)(1).

“Manager” means the person(s) designated by the owner of the massage establishment to act as the representative and agent of the owner in managing day-to-day operations with corresponding liabilities and responsibilities. Evidence of management includes, but is not limited to, evidence that the individual has the 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.

“Massage” means any method of treating the external parts of the body for remedial, health, hygienic, or relaxation purpose. “Massage” includes, but is not limited to, treatment by means of manual pressure, acupressure, friction, stroking, kneading, rubbing, tapping, pounding, vibrating, or any other manner of touching, with or without the aid of or by means of any mechanical or electrical apparatus or appliance, or with rubbing alcohol, liniments, aromatics, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations.

“Massage establishment” means any enterprise or 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, any of the activities set forth in the definition of “massage” in this section.

“Massage practitioner” means a person who is certified by the state-created organization in accordance with California Business and Professions Code Section 4601(b).

“Massage technician” or “technician” means any person who offers to or actually administers a massage to another person for any form of consideration and who has received a permit from the city of Gardena to engage in such occupation.

“Massage therapist” means a person who is certified by the state-created organization in accordance with California Business and Professions Code Section 4601(c).

“Operator” means all persons who own or manage a massage establishment.

“Owner” means all of the following:

1. The sole proprietor of a massage establishment, i.e., where the owner is the only person employed by that establishment to provide massage services;

2. In the case of a general business, each owner of the business;

3. In the case of a corporation, each stockholder holding more than ten percent of the corporation and each officer and director of the corporation;

4. In the case of a partnership or limited liability corporation, each partner, excluding limited partners and owners, and where a partner or owner is a corporation, the provisions on owners pertaining to a corporate applicant in subsection 3 of this definition apply.

“Patron” means a person utilizing the services of a massage establishment.

“Patron area” means any area within a massage establishment open to patrons of the establishment or the general public.

“Permittee” means any person who has obtained a certificate of operation, operator permit, or work permit from the city of Gardena.

“Person who has engaged in disqualifying conduct” means a person who:

1. Within ten years preceding the date of filing of the application in question or, in the case of revocation proceedings, within ten years preceding the date of the revocation notice, has been convicted in a court of competent jurisdiction of any of the following:

a. A violation of any provision of law pursuant to which a person is required to register under the provisions of Penal Code Section 290; or

b. Conduct in violation of Penal Code Section 266h, 266i, 314, 315, 316, 318, 653.22, 653.23, or subsections (a), (b) or (d) of Penal Code Section 647; or

c. An attempt to commit or conspiracy to commit any of the above mentioned offenses; or

d. Any other crime involving dishonesty, fraud, deceit, or moral turpitude; or

e. When the prosecution accepted a plea of guilty or nolo contendere to a charge of a violation of Penal Code Section 415, 602 or any lesser included or related offense, in satisfaction of, or as a substitute for, any of the previously listed crimes; or

f. Any crime committed while engaged in the management or ownership of a massage establishment or the practice of massage; or

g. 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; or

h. Any offense under a statute of any state or ordinance of any city or county, which is the equivalent of any of the aforementioned offenses; or

2. Within ten years preceding the date of the filing of the application in question or, in the case of revocation proceedings, within ten years preceding the date of the revocation notice, has had any massage establishment, operator, technician, practitioner, therapist or trainee certificate, license or permit issued by any state, local agency or other licensing authority denied, revoked or suspended, or has had to surrender such a license or permit as a result of pending criminal charges or in lieu of said license or permit being suspended or revoked; or

3. Has been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Sections 11225 through 11235 of the Penal Code as the same may be amended from time to time, or any similar provisions of law in a jurisdiction outside the state of California; or

4. Has been found to be maintaining a nuisance in connection with the same or similar type of business.

“Proof of bona fide employment” means proof of an employer-employee relationship between the operator of the massage establishment and any person working at the massage establishment. Satisfactory proof of bona fide employment must be shown by written payroll documentation evidencing the employer’s compliance with California Employment Development Department (EDD) requirements for the withholding of California income tax, unemployment insurance contributions and disability contributions from the employee and written payroll documentation of the employer’s compliance with Internal Revenue Service (IRS) requirements for the withholding of federal income taxes, Social Security (FICA) and Medicare contributions from the employee. Such written documentation can include, but is not limited to, W-2 wage and tax statements.

“State certificate” means a massage therapist certificate or massage practitioner certificate issued by the state-created organization.

“State-created organization” means the nonprofit organization created to regulate and issue massage practitioner and therapist certificates pursuant to Business and Professions Code Section 4600 et seq.

“Visitor” means a nonemployee who has entered the massage establishment, but is not receiving services. (Ord. 1714 § 1 (part), 2010)

5.48.030 Exceptions.

A. The requirements of this chapter shall have no application and no effect upon and shall not be construed as applying to:

1. Any physician, surgeon, chiropractor, acupuncturist, osteopath, or physical therapist licensed to practice such profession in the state of California;

2. Any registered nurse or licensed vocational nurse, licensed to practice under the laws of the state of California, who is an employee of and working under the on-site direction of a physician, surgeon, chiropractor, acupuncturist, osteopath, or physical therapist, duly licensed to practice their respective professions in this state. No other person employed by a physician, surgeon, chiropractor, osteopath, acupuncturist, or physical therapist, shall administer a massage without having first obtained a valid state certificate.

3. Any 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.

4. Any persons providing massages that (a) do not involve disrobing and (b) are not administered in a room separate and apart from the primary business activity at the business location.

5. State-licensed hospitals, nursing homes, sanatoriums, or other health care facilities duly licensed by the state of California, and the employees of such facilities while working on the premises of such state-licensed facilities.

6. Accredited high schools, junior colleges, and colleges or universities whose coaches and trainers are acting within the scope of their employment.

7. Barbers, beauticians, or manicurists who are duly licensed by the state of California pursuant to the Barbering and Cosmetology Act set forth in Business and Professions Code Section 7300 et seq., as the same may be amended from time to time, 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 forearms, hands, calves, and/or feet.

8. Schools of cosmetology or barbering which comply with the requirements of Business and Professions Code Section 7362 et seq. when instructors are acting within the scope of their employment or when students are working as unpaid externs pursuant to the requirements of Business and Professions Code Section 7395.1.

9. Any other business or professions exempt by state law.

B. Businesses that offer ancillary massage services are exempt from this chapter, subject to the requirements set forth below. Ancillary massage services shall be those services performed at a business where fifteen percent or less of the overall business operations are related to provision of massage services as measured by the percentage of gross sales or floor area devoted to provision of massage, whichever is greater, as documented in a site plan provided to the police department. Businesses to which this exemption may apply include, but are not limited to, health clubs, spas and beauty salons. Any such business that exceeds the fifteen percent limitation shall be required to comply with the provisions of this chapter, as well as any other provisions of law, including obtaining a conditional use permit.

1. Massage services must be performed by the holder of a valid state certificate.

2. Massages may only be performed between the hours of 8:00 a.m. and 10:00 p.m. A massage begun any time before 10:00 p.m. must nevertheless terminate at 10:00 p.m.

3. The business shall comply with the following provisions of this chapter:

a. Section 5.48.140C relating to instruments, equipment and personnel;

b. Section 5.48.140D.1 through 3 relating to personnel lists;

c. Section 5.48.150B relating to building and facility requirements;

d. Section 5.48.150C.1 through 4 relating to facility requirements; and

e. Section 5.48.160 relating to inspections.

C. Any person claiming exemption under this section shall furnish satisfactory evidence upon request that he or she is entitled to such exemption, including, proof of bona fide employment, or if applicable, a citation to the particular provision of state law upon which that person relies. (Ord. 1714 § 1 (part), 2010)

5.48.040 Business license/other permits required.

Nothing herein relieves an individual or business from obtaining a city business license or other permit if otherwise required by law. (Ord. 1714 § 1 (part), 2010)

Article II. Massage Therapists and Practitioners

5.48.050 State certificate required.

A. No person shall provide massage services from any location in the city without having been issued a state certificate, regardless of whether such person has an operator or work permit or the business has a certificate of operation.

B. Notwithstanding subsection A of this section, massage technician permits previously issued by the city shall be considered valid through the current expiration date of such permits and all references to the requirement of having a valid state certificate shall be deemed satisfied by a valid massage technician’s permit. Once the permit expires, the permittee shall be required to obtain a state certificate.

C. Any person certified by the state who desires to operate a massage establishment or work in a massage establishment in a capacity other than as a massage therapist or massage practitioner must file a permit application in accordance with Article III of this chapter for an operator permit or a work permit.

D. This section shall remain in effect only through the effective date of SB 731 (Chapter 384, Stats. 2008), which added Chapter 10.5 to Division 2 of the California Business and Professions Code, or any such extension thereof. Upon expiration of the statute, or of any state certificates issued thereunder, the provisions set forth in Article V of this chapter shall apply. (Ord. 1714 § 1 (part), 2010)

Article III. Certificates of Operation, Operator and Work Permits

5.48.060 Application – General provisions.

A. Any person desiring to obtain a certificate of operation, operator permit and/or a work permit shall make application in accordance with the provisions of this article. A nonrefundable fee in an amount established by resolution of the city council shall accompany the submission of each application, to defray, in part, the costs of investigation and report.

B. All applications shall be dated and shall contain the following statements:

1. A certification under penalty of perjury that the information contained in the application is true and correct; and

2. An authorization for the city, its officers, agents and employees to seek information and conduct an investigation into the truth of the statements set forth in the application and to ensure continual compliance with all applicable provisions of law.

C. Upon receipt of a completed application, the chief of police shall cause an investigation to be conducted by the appropriate departments within the city, including state and local background checks to be conducted for operator and work permits, as specified herein.

D. Within sixty working days following receipt of a completed application, the chief of police shall either issue the certificate or permit or mail a written statement of his/her reasons for denial thereof. Notwithstanding the above, failure of the city to act upon a completed application within the time frame set forth above shall not be deemed approval of the application pursuant to this chapter. Any certificate or permit issued pursuant to this subsection shall be deemed conditional pending the city’s receipt of the California Department of Justice report on the applicant’s fingerprints. 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 therewith, or discloses any disqualifying conduct, the permit shall be subject to denial or revocation pursuant to this chapter.

E. If the chief of police denies an application submitted pursuant to this chapter, all massage activity at the massage establishment (in the case of a certificate of operation or an operator permit) or all activities by an employee (in the case of work permit) must cease following issuance of such denial and no activity for which the certificate of operation or permit is required shall be conducted while any appeal of the denial may be pending.

F. The chief of police may condition applications to ensure compliance with the provisions of this chapter. (Ord. 1714 § 1 (part), 2010)

5.48.070 Certificate of operation.

A. Permit Required. No massage establishment shall be permitted to operate within the city unless the business first obtains a certificate of operation. No certificate of operation shall be approved unless each operator identified in the application has obtained an operator permit.

B. Applications for a certificate of operation shall include the information set forth below:

1. The full name of the applicant;

2. The name under which the business is to be conducted, which name must match the name of the business under which the corresponding business tax certificate is issued under Chapter 5.04. No massage establishment business shall operate under any business name or conduct business under any designation not specified in the certificate of operation. If the applicant is a corporation, the name shall be exactly as shown on the articles of incorporation;

3. The address of the proposed massage establishment, a site plan indicating how the use is proposed to be conducted within the premises, and a description of any other business operated on the same premises;

4. A detailed description of the operation and type of services to be provided by the massage establishment, including proposed hours of operation and number of massage therapists and practitioners and employees who will provide services at the establishment;

5. The name of each operator of the massage establishment; and

6. The name, residence and business addresses and phone numbers of the owner of the premises, if other than the applicant, on which the massage establishment is to be located. 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 or her property. This requirement shall not apply to an exempt massage establishment.

C. The chief of police shall issue a certificate of operation, unless, after investigation, he or she makes any of the following findings:

1. The massage establishment would not comply with all applicable laws, including, but not limited to building, fire, zoning, health and safety regulations and cannot be conditioned to so comply; or

2. The location of the massage establishment has, within a three-year period prior to the submittal of the application, been the site of (i) disqualifying conduct, or (ii) a violation of any provision of this chapter, or any similar criminal or civil ordinance, law, rule, or regulation of the state of California or any other public agency which regulates the operation of massage establishments; or

3. Each operator of the massage establishment has failed to obtain an operator permit.

D. A sale or transfer of any reportable interest in a massage establishment, which interest would be required to be reported under subsection (B)(5) of this section in the first instance, shall be reported to the chief of police within ten calendar days of such sale or transfer. The new operator shall apply for and obtain an operator’s permit within sixty days of the date of reporting or the certificate of operation shall be null and void and subject to revocation in accordance with the provisions of this chapter.

E. A certificate of operation is not transferable to a new business or separate location of the same business.

F. Every massage establishment for which a certificate of operation has been granted pursuant to this chapter shall display the certificate in a conspicuous place so it may be readily seen by persons entering the premises. (Ord. 1714 § 1 (part), 2010)

5.48.080 Operator and work permits.

A. Permits Required.

1. Operator Permit. No person shall own, operate, or manage any massage establishment in any location within the City without first having obtained an operator permit.

2. Work Permit. No person shall work as an employee in a massage establishment in a capacity other than operator, massage therapist or massage practitioner, without first having obtained a work permit.

B. Application – Contents. Applicants for operator and work permits shall submit the following information:

1. The full true name of the applicant;

2. A complete statement listing and explaining any and all aliases and fictitious names used by the applicant within the ten years immediately preceding the application;

3. The current residence and business address and current residence and business telephone number of the applicant;

4. A list of all previous residential and business addresses for a minimum of eight years immediately preceding the present address of the applicant and the dates of residence for each address;

5. The applicant’s place of birth, and original documentation to verify both the applicant’s identity and employment authorization (if applicable), as listed under 8 USC 1324a(b)(1) and 8 CFR 274a.2(b)(1). Documentation to satisfy this requirement may include, but is not limited to, a California driver license, California identification card, Social Security card, resident alien (“green”) card, United States passport (unexpired or expired), unexpired foreign passport that contains a temporary I-551 stamp, or an unexpired employment authorization document issued by the United States Government in compliance with 8 CFR 274a.2(b)(1)(v)(A);

6. The history of the applicant as to any similar business or occupation within ten years immediately preceding the filing of the application. Such information shall include, but not be limited to, the names and addresses of any other massage establishments or similar businesses the applicant has owned, managed, provided massage technician or any other services at, or worked at, whether the applicant has had a permit or license to operate, manage, provide massage technician or any other services at, or work at a massage establishment denied, revoked or suspended in any jurisdiction; the reasons for any such denial, revocation or suspension; and the business, activity or occupation the applicant engaged in subsequent to such denial, revocation or suspension;

7. All criminal convictions within the last ten years, excluding minor traffic violations, and the date and place of each such conviction and reason therefor;

8. A complete set of the applicant’s fingerprints taken by the Gardena police department. The applicant shall be responsible for payment of any fingerprinting fee;

9. The name and address of the establishment where the applicant will be working and, if the applicant is claiming to be an employee of the establishment, proof of bona fide employment by the massage establishment; and

10. Such other reasonable identification and information as the chief of police may require in order to discover the truth of the matter specified as required to be set forth in the application.

C. All applicants for operator and work permits shall have their pictures taken by the Gardena police department.

D. The chief of police shall issue such permit as requested, unless after investigation he or she makes any of the following findings:

1. The applicant has failed to provide information, documentation and assurances required by this chapter or by the chief of police; has failed to reveal any fact material to qualification; or has supplied information that is untrue or misleading as to a material fact pertaining to the qualification criteria; or

2. The applicant is a person who has engaged in disqualifying conduct; or

3. There is substantial evidence that the applicant has engaged in disqualifying conduct, even if there is no conviction for such conduct; or

4. The applicant has violated any provision of this chapter, or any similar ordinance, law, rule, or regulation of any other public agency which regulates the operation of massage establishments; or

5. The applicant is not at least eighteen years of age; or

6. The applicant is delinquent in paying city fees or penalties owed in relation to any permit issued pursuant to this chapter.

E. Permits issued pursuant to this section shall remain in effect, unless revoked, for a period of three years. Applications for the renewal of a permit shall be filed on a form supplied by the city with the chief of police at least sixty calendar days before the expiration of the then current permit to be renewed. Temporary permits shall not be issued. Any permittee allowing his or her permit to lapse shall be required to submit a new application and pay the corresponding original application fees. Applications shall be signed under penalty of perjury and shall be accompanied by a nonrefundable filing fee established by separate resolution of the city council to help defray the cost of the investigation required by this chapter. An applicant shall be required to update the information contained in his/her original permit application and provide any new and/or additional information as may be reasonably required by the chief of police in order to determine whether said permit should be renewed, including all information required by subsection B of this section. Failure to provide this documentation shall be grounds for nonrenewal of the permit.

F. Automatic Issuance for State Certificate Holders.

1. Any person who holds a valid state certificate as a massage therapist or a massage practitioner shall only be required to provide the following information on a form that includes the statements set forth in Section 5.48.060B:

a. The full true name of the applicant;

b. The current residence and business address and current residence and business telephone number of the applicant; and

c. The name and address of the massage establishment for which the operator or work permit is sought.

2. A copy of the applicant’s state certificate shall be provided with the application.

3. The operator or work permit shall automatically issue upon verification of the state certificate by the police department. No background check shall be required.

4. Renewals shall be required, but such renewals shall be automatic and no fees shall be required as long as the applicant maintains a valid state certificate.

G. Every person to whom a permit has been granted pursuant to this chapter shall be issued an identification badge by the Gardena police department which shall contain the person’s name, photograph, expiration date and any other information deemed necessary by the chief of police. The badge shall be worn so as to be readily visible at all times while on the premises of the massage establishment.

H. Permits issued pursuant to this chapter may not be assigned or transferred. (Ord. 1714 § 1 (part), 2010)

5.48.090 Changed information.

It is the duty of each operator and permittee to notify the chief of police whenever there is a change in information which was required to be submitted in the application. Such notification shall be in writing and made within ten business days of the change. (Ord. 1714 § 1 (part), 2010)

5.48.100 Revocation of permits.

A. Action of Chief of Police. Subject to the procedures set forth in this section, the chief of police may revoke a certificate of operation, operator permit or work permit issued pursuant to this chapter whenever the chief of police determines that any of the following has occurred:

1. The permittee is conducting operations in a manner contrary to the provisions of this code;

2. The permittee is conducting operations in a manner which constitutes a public nuisance;

3. The permittee is conducting operations in a manner which is detrimental to the health, safety or welfare of the city or its inhabitants;

4. The chief of police makes any of the findings that would have justified denying the application in the first instance.

B. If, in the discretion of the chief of police, the violation is capable of correction, then prior to revocation a written notice shall be given to the permittee of the violation(s) involved to allow a period of time to correct the violation(s), which period shall not exceed five business days, at the end of which period, the police department shall conduct an inspection to determine whether the violation(s) has been corrected. If the chief of police determines that the violation is not capable of correction or finds that the violation(s) continues without correction, then the chief of police may issue a notice of revocation. Examples of a violation which will be determined by the chief of police to be not capable of correction include but are not limited to substantial evidence of prostitution activity on the massage establishment premises or an immediate threat to health, safety or welfare.

C. Notice of Revocation. Notice of revocation shall contain a statement of the violation(s) which constitute the basis for the revocation. The chief of police shall serve the notice of revocation on the permittee, as well as any other interested person requesting a copy of the same. All massage activity at the massage establishment (in the case of a certificate of operation or operator permit) or work activity by a massage employee (in the case of a work permit) shall cease following issuance of the notice of revocation and no activity for which the permit is required shall be conducted while any appeal of the revocation may be pending. The notice shall include information about the right to appeal and the necessity of an appeal to file a lawsuit.

D. Surrender of Permits. Any permittee shall immediately surrender his or her permit to the chief of police upon its revocation. (Ord. 1714 § 1 (part), 2010)

5.48.110 Appeals to city manager.

A. Appeals.

1. Appeals from a decision of the chief of police to deny, revoke, or refuse to renew a permit shall be in writing, shall clearly state the applicable basis for the appeal, and shall be filed with the city clerk not later than fifteen calendar days following the giving of notice of the decision by the chief of police.

2. The city clerk shall not accept an appeal from a decision of the chief of police, and no hearing shall be held, unless the appellant has paid a filing fee, in an amount set by resolution of the city council, to defray the cost of such appeal. Any appeal without the timely payment of fees shall be considered to be untimely.

3. The scope of the appeal hearing pursuant to this section shall be limited to those issues raised by the appellant in the written appeal, as submitted pursuant to subsection (A)(1) of this section.

B. City Manager Action.

1. Upon receipt of a timely filed appeal, the city clerk shall set the matter for hearing before the city manager. The hearing shall be held not fewer than ten calendar days nor more than thirty calendar days from the date of the appeal request. The hearing may be continued from time to time upon the mutual consent of the parties.

2. The appellant shall be provided with notice of the time and place of the appeal hearing, as well as a copy of all relevant materials at least seven calendar days prior to the hearing.

3. At the time of such hearing, the city manager shall review the records and files of the chief of police relating to the decision. In addition, the city manager shall permit any interested person, including the chief of police and the appellant, to present any relevant evidence bearing on the issues involved in the matter. In conducting the hearing, technical rules relating to evidence and witnesses shall not apply. Any relevant evidence may be admitted if it is material and if it is evidence customarily relied upon by responsible persons in the conduct of their affairs regardless of the existence of any common law or statutory rule which might make admission of such evidence improper over objection in civil actions. Hearsay evidence may be admissible if it is the sort upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The rules of privilege shall be applicable to the extent they are now, or are hereafter permitted in civil actions. Irrelevant, collateral, and repetitious testimony shall be excluded. The appellant shall have the burden of proving that he or she meets the requirements for issuing the permit in the first instance. The chief of police shall have the burden of proving that grounds exist for revoking or failing to renew a permit.

4. Based upon the evidence presented at the hearing, the city manager shall determine whether the decision by the chief of police should be affirmed, modified or reversed.

5. The city manager’s decision shall be communicated in writing to the appellant within seven calendar days after the close of the hearing and submission of the matter to the city manager for decision. The city manager’s decision shall state whether the decision of the chief of police is affirmed, modified or reversed and shall state the reasons therefor. The city manager’s decision shall also state that it is final and conclusive, that judicial review may be sought therefrom pursuant to Code of Civil Procedure Section 1094.5, and that any action filed in the superior court shall be filed within ninety days following the city manager’s notice pursuant to Code of Civil Procedure Section 1094.6. (Ord. 1726 § 9, 2011; Ord. 1714 § 1 (part), 2010)

5.48.120 Reapplication.

No person shall apply for an operator permit or a work permit which has been revoked or denied for a minimum of one year following the date that the denial or revocation is final. (Ord. 1714 § 1 (part), 2010)

5.48.130 Notices.

All notices required to be given pursuant to this chapter shall be served on the responsible party (i.e., permittee, applicant or appellant) either by personal delivery or by deposit in the United States mail in a sealed envelope postage prepaid addressed to such responsible party as the name and address appear in the most recent application on file with the city. Service by mail shall be deemed to have been completed on the date deposited in the mail. (Ord. 1714 § 1 (part), 2010)

Article IV. Operation and Facility Requirements

5.48.140 Operational requirements.

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 at 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 any front window clearly visible from outside of the massage establishment.

2. During hours of operation, no person other than a valid permit holder under this chapter, a massage therapist, a massage practitioner, or a patron shall be allowed beyond the front lobby of the massage establishment.

3. Patrons and visitors shall only be permitted in the massage establishment during the hours of operation.

a. Visitors shall only be permitted in the lobby area of the massage establishment.

b. Patrons shall only be permitted in massage treatment areas if at least one certified massage therapist or massage practitioner is on the premises.

4. The massage establishment shall be supervised during all hours of operation by the owner of the establishment or the manager specified in the permit application.

B. Posting Requirements. In addition to any other requirements for posting set forth in this chapter, the following shall also apply:

1. A recognizable and legible sign complying with the requirements of this code shall be posted at the main entrance identifying the establishment as a massage establishment.

2. Each service offered, the price thereof, and the minimum length of time such service shall be performed shall be posted in English and such other languages as may be convenient to communicate such service, in a conspicuous public location in each massage establishment. No services shall be performed and no sums shall be charged for such services other than those posted.

3. Any posted signs which are in a language other than English shall also be posted in English.

C. Instruments, Equipment, and Personnel.

1. Disinfecting agents and sterilizing equipment shall be provided for any instruments used in performing acts of massage and said instruments shall be disinfected and sterilized after each use.

2. Massages shall be administered only on standard or portable massage tables which are covered with a durable, washable plastic or other acceptable waterproof material. Beds, mattresses, water beds, futons, sofa beds, any type of portable or convertible beds, and foam pads more than four inches thick or with a width of more than four feet shall not be permitted in the establishment.

3. Except to the extent required, in writing, by a state-licensed medical practitioner, no massage therapist or massage practitioner shall massage the genitals, gluteal fold, or anal area of any patron or the breasts of any female patron, nor shall any operator of a massage establishment allow or permit such a massage to the above-specified areas.

4. A massage shall not be given and no patron shall be in the presence of any massage establishment staff unless the patron’s genitals, gluteal fold, anus, and, if a female patron, the female patron’s breasts, are fully covered by a fully opaque, nontransparent covering.

5. All persons providing services in the massage establishment shall be fully clothed at all times. Clothing shall be of a fully opaque, nontransparent material and shall provide complete covering from no higher than mid-thigh to no lower than three inches below the collarbone. Massage therapists and massage practitioners shall wear fully buttoned or otherwise fully fastened opaque smocks over street clothing while performing massage services.

6. All massage 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.

7. Clean and sanitary towels, sheets and linens shall be provided for each patron of the establishment. No common use of towels or linens shall be permitted. Heavy white paper may be substituted for sheets; provided, that such paper is used once for each person and then discarded into a sanitary receptacle.

D. Personnel Lists.

1. Within seven calendar days of receiving a certificate of operation, the operator shall provide the police department with a complete list of all massage therapists, massage practitioners and other employees who are or will work, be employed or provide massage services in the massage establishment and the name and residence address of the manager principally in charge of the operation of the massage establishment.

2. The operator shall have a continuing obligation to notify the chief of police in writing of any changes in employees and massage therapists and massage practitioners within seven calendar days of such change.

3. The operator shall maintain copies of each massage therapist’s and massage practitioner’s state certificate on file on the premises of the massage establishment which shall be available to any individual upon request, including but not limited to employees of the city. Additionally, the operator shall be required to file copies of each state certificate with the police department within seven days of a massage therapist or massage practitioner beginning to work at the massage establishment. Information required by this section shall be maintained at the massage establishment for a minimum of two years following the date that the person ceases providing services/employment to the massage establishment.

4. The operator shall maintain on the premises of the massage establishment a register of massage technicians and other non-state certified persons employed, working or providing services therein. The register shall be maintained for a minimum of two years following the time that the person ceases providing services/employment to the massage establishment. The operator shall at all reasonable times make the register immediately available for inspection upon demand of a representative of the police department, any health officer, or any other official charged with enforcement of this chapter. The register shall include but is not limited to the following information:

a. Name, nicknames and/or aliases;

b. Home address and relevant phone number, including but not limited to home, cellular and pager numbers;

c. Age, date of birth, gender, height, weight, color of hair and eyes;

d. The date of employment, and termination, if any;

e. The duties of each person; and

f. In a separate portion of the register, Social Security numbers, which shall only be available for review by the Gardena police department or other law enforcement personnel, but not health officers or other officials charged with the enforcement of this chapter.

E. Prohibited Conduct.

1. No alcoholic beverages shall be sold, served, or furnished on the premises of any massage establishment without a valid alcoholic beverage license.

2. No storage of condoms shall be permitted within the massage establishment.

3. No operator shall hire, employ or allow a person to operate from a massage establishment unless that person possesses a valid state certificate. No operator shall hire or allow an employee to work in a massage establishment as other than a massage therapist or massage practitioner unless that person has a valid work permit. Each operator of a massage establishment shall verify that all persons hold the appropriate state certificates or work permits as required by this chapter.

4. No person shall use or possess any sexually-oriented merchandise, as defined in Section 18.62.020, in any part of a massage establishment.

5. No electrical, mechanical or artificial device shall be used by any massage establishment staff for audio and/or video recording or for monitoring the performance of a massage, of the conversation or other sounds in the massage rooms without the knowledge and written consent of the patron.

6. No massage establishment 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 patrons or clients that any service is available other than those services described in this chapter and posted on the premises as required in this chapter, nor shall any massage establishment employ language in the text of any advertising that would reasonably suggest to a prospective patron that any service is available other than those services described in this chapter and posted on the premises as required by this chapter.

7. No arrangements for massage services to be performed shall be made in a room in the massage establishment used for the administration of massage, unless no other room exists in the establishment. No massage practitioner or therapist shall, after the commencement of any service for any patron, advise, suggest or otherwise indicate to such patron that any additional service is available, or ask or inquire of such patron whether such patron desires any additional service to be performed. No massage practitioner or therapist shall perform any service for any patron which was not ordered by such patron prior to the commencement of performance of any service rendered. No patron shall directly pay or give any gratuity to any massage practitioner or therapist, employee or operator, and no such person shall solicit any gratuity from any patron. (Ord. 1726 § 10, 2011; Ord. 1714 § 1 (part), 2010)

5.48.150 Building and facility requirements.

A. The following regulations shall apply to all nonexempt massage establishments:

1. Hot and cold running water shall be provided at all times.

2. Closed cabinets shall be provided for the storage of clean linen.

3. Adequate bathing, dressing, locker and toilet facilities shall be provided for patrons. A minimum of one tub or shower, one dressing room containing a separate locker for each patron to be served, which locker shall be capable of being locked, and a minimum of one toilet and one wash basin shall be provided by every massage establishment; provided, if male and female patrons are to be served simultaneously at the establishment, separate massage room or rooms, separate dressing facilities and separate toilet facilities shall be provided for male and female patrons.

4. A minimum of one separate wash basin shall be provided in each massage establishment for the use of employees of the establishment.

5. All wash basins shall provide soap or detergent and hot and cold running water at all times and shall be located within or as close as practicable to the area devoted to the performing of massage services. In addition, there shall be provided at each wash basin single service towels placed in permanently installed dispensers or hand blow dryers.

6. Minimum ventilation shall be provided in accordance with the applicable building codes of the city. To allow for adequate ventilation in cubicles, rooms and areas provided for patrons’ use, which are not serviced directly by required windows or mechanical systems of ventilation, partitions shall be constructed so that the height of partition does not exceed seventy-five percent of the floor-to-ceiling height of the area in which they are located.

7. All massage rooms and dressing rooms shall be screened off by swinging doors mounted at least eighteen inches from the floor and not fewer than ten inches from the top of the door frame, curtains, or draw drapes. In the alternative, a massage room or dressing room may be screened off by a door that is mounted in compliance with the building code, provided such door is fitted with a window at least twelve inches by twelve inches in size that provides an unobstructed view from outside the door of the interior of the room being screened. Such door shall also be hung with a double action hinge that permits the door to be opened in either direction and shall contain no locking mechanism.

8. The interior of the front lobby shall be fully and clearly visible from outside of the massage establishment, with no sight obstructions allowed on any window areas, including signs, tinting, solar film, or similar window treatment.

9. The lobby shall be directly inside the front door entrance of the massage establishment.

10. The front door shall be visible from the primary street, highway frontage or parking lot in the case of a business whose front door is located within the interior of a commercial center.

B. The following shall apply to all exempt massage establishments:

1. The building, or unit within the building where the exempt massage establishment is located, shall comply with all applicable building code requirements;

2. All massage rooms and dressing rooms shall be screened off by swinging doors that can open inward and are self-closing. Draw drapes, curtain enclosures, or accordion-pleated closures in lieu of doors are acceptable on all inner dressing rooms and massage therapy rooms or cubicles.

C. The following shall apply to both nonexempt and exempt massage establishments:

1. In addition to the minimum lighting required by the provisions of Title 15, at least one artificial light of not fewer than forty watts shall be provided in each room or enclosure where massage services are to be administered.

2. Any locker facilities provided for the use of patrons shall be fully secured for the protection of the patron’s valuables and the patron shall be given control of the key or other means of access.

3. The walls in all rooms where water or steam baths are given shall have a washable mold-resistant surface.

4. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms and all other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments, and toilet rooms shall be thoroughly cleaned and disinfected each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected after each use.

5. One front door that enters into the front lobby shall be provided for patron use. All patrons, and any persons other than those providing services at the massage establishment, shall be required to enter and exit through the front door of the establishment.

6. All exterior doors (except rear exterior doors used only for employee entrance to and exit from the massage establishment) shall remain unlocked during business hours, and the establishment shall comply with the provisions of the Gardena Municipal Code pertaining to the posting of signs stating that doors shall remain unlocked during business hours. Exits for fire safety purposes may be allowed where deemed necessary by the appropriate public safety agency. Notwithstanding the above, the front door may be locked if there is no staff available to assure security for the clients and massage staff who are behind closed doors. (Ord. 1714 § 1 (part), 2010)

5.48.160 Inspections.

A. Representatives of the city’s community development department, business license office, and police department; agents for the city from the county fire department and health department; and representatives of any state or local agencies with regulatory authority over massage establishments shall have the right to enter massage establishments, from time to time, during regular business hours, or at any time that the massage establishment is occupied or open for business, to verify the massage establishment is in compliance with all applicable laws.

B. The operator shall cause to be conspicuously posted so that the same may be readily visible to persons in the front lobby of the massage establishment and in each room in which massage treatments are administered, in letters that are a minimum of one inch in height, a notice in English which provides substantially as follows:

THIS MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION BY CITY AND HEALTH OFFICIALS WITHOUT PRIOR NOTICE

C. No person shall refuse to permit, cause delay, or interfere with a lawful inspection or compliance check of the premises by the officials listed in subsection A of this section at any time. (Ord. 1714 § 1 (part), 2010)

5.48.170 Violation – Nuisance/remedy.

A. It is unlawful for any person to engage in conduct that violates any provision of this chapter, to engage in conduct which fails to meet the standards set forth in this chapter, or to own, manage, or operate a massage establishment that is not fully in compliance with the following operational standards.

B. Any massage establishment operated, conducted or maintained contrary to the provisions of this chapter shall be and is declared to be unlawful and a public nuisance and the city may, in addition to or in lieu of prosecuting a criminal action under this chapter, commence an action or actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in the manner provided by law, including any code enforcement procedures established pursuant to the laws of the state of California and the city of Gardena; and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such massage establishments and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary to the provisions of this chapter. If an injunction is sought, attorney’s fees and costs will be assessed at the discretion of the court against the party subject to said injunction.

C. 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. (Ord. 1714 § 1 (part), 2010)

Article V. Previous Massage Technician Provisions

5.48.180 Applicability.

The provisions of this article shall apply to massage technicians until such time as the technician is required to obtain a state certificate and when the provisions of SB 731, or any statute extending or amending the provisions thereof, are of no further force and effect. At such time as the provisions of SB 731, or any statute extending or amending the provisions thereof, are of no further force and effect, all references in the previous parts of this chapter shall mean “massage technicians.” (Ord. 1714 § 1 (part), 2010)

5.48.190 Definitions.

In addition to the definitions set forth in Article I of this chapter, the following definition applies:

A. “Recognized school of massage” means (1) any school or institution of learning which is open to public enrollment and 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, including but not limited to Section 94900 or 94905 of the Education Code, 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 fewer than five hundred hours completed in no fewer than three months 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 is open to public enrollment and (a) teaches the theory, ethics, practice, profession, or work of massage, (b) requires for graduation a resident course of study of not fewer than five hundred hours completed in no fewer than three months 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 or Internet course not requiring attendance shall not be deemed a “recognized school of massage.” (Ord. 1714 § 1 (part), 2010)

5.48.200 Massage technician permit required.

A. No person shall work as a massage technician in a massage establishment without first having obtained a valid massage technician permit. A valid massage technician permit shall be required for any person who offers to, engages in, conducts, or provides massage services from any location within the city, whether in the capacity of an employee or an independent contractor. A person who has a valid state certificate shall not be required to obtain a massage technician permit until the expiration of the state certificate.

B. A massage technician permit does not authorize the operation or management of a massage establishment. Any person permitted to perform massage services who desires to operate or manage a massage establishment must apply separately and obtain a permit therefor.

C. Any person desiring to obtain a massage technician permit shall make application to the chief of police who shall make such investigation as may be necessary to determine compliance with the provisions of this chapter. A nonrefundable fee in an amount established by resolution of the city council shall accompany the submission of each application, to defray, in part, the costs of investigation and report.

D. Applicants for a massage technician permit shall include the following information:

1. The full true name of the applicant and a complete statement listing and explaining any and all aliases and fictitious names used by the applicant within the ten years immediately preceding the application;

2. The current residence and business address, current residence and business telephone number and all previous residential and business addresses for a minimum of eight years immediately preceding the present address of the applicant and the dates of residence for each address;

3. The applicant’s place of birth, and original documentation to verify both the applicant’s identity and employment authorization, as listed under 8 USC 1324a(b)(1) and 8 CFR 274a.2(b)(1). Documentation to satisfy this requirement may include, but is not limited to, a California driver license, California identification card, Social Security card, resident alien (“green”) card, United States passport (unexpired or expired), unexpired foreign passport that contains a temporary I-551 stamp, or an unexpired employment authorization document issued by the United States Government in compliance with 8 CFR 274a.2(b)(1)(v)(A);

4. The history of the applicant as to any similar business or occupation within ten years immediately preceding the filing of the application. Such information shall include, but not be limited to, the names and addresses of any other massage establishments or similar businesses the applicant has owned, managed, provided massage technician services or any other services at, or worked at, or been employed at; whether the applicant has had a permit or license to operate, manage, provide massage technician services or any other services at, or work at a massage establishment denied, revoked or suspended in any jurisdiction; the reasons for any such denial, revocation or suspension; and the business, activity or occupation the applicant engaged in subsequent to such denial, revocation or suspension;

5. All criminal convictions within the last ten years, excluding minor traffic violations, and the date and place of each such conviction and reason therefor;

6. A complete set of applicant’s fingerprints taken by the Gardena police department. The applicant shall be responsible for payment of any fingerprinting fee;

7. An original or certified copy of a diploma or certificate and certified transcript of graduation from a recognized school of massage verifying completion of a course of study;

8. Proof that within the previous twelve months the applicant has qualified for, taken and passed the National Certification Examination for Therapeutic Massage and Bodywork or the Los Angeles County examination of applicants for massage technician permits, or a comparable examination as determined by the chief of police;

9. The name and address of the establishment where the massage technician will be working and, if the applicant is claiming to be an employee of the establishment, proof of bona fide employment by the massage establishment;

10. Proof that the applicant is a member in good standing of a state or national professional association devoted to the profession of massage, which association meets all of the following requirements:

a. Requires that its members meet minimum educational requirements, including classroom instruction in anatomy, physiology, hygiene, sanitation, massage theory and practice, and ethics of massage practice totaling at least five hundred hours; and

b. Offers and encourages participation in continuing education programs; and

c. Has an established code of ethics and enforcement procedures for the suspension and revocation of membership of persons violating the code of ethics; and

d. Is open to members of the general public meeting its requirements for membership on a statewide or national basis, maintains a membership which reflects substantial statewide or national participation by persons engaged in the business of massage, and is devoted to serving the interests of its members, the massage profession, and the public; and

11. Such other reasonable identification and information as the chief of police may require in order to discover the truth of the matter specified as required to be set forth in the application.

E. All applications shall be dated and shall contain the following statements:

1. A certification under penalty of perjury that the information contained in the application is true and correct; and

F. Upon receipt of a completed application, the chief of police shall cause an investigation to be conducted by the appropriate departments within the city and cause a state and local background check to be conducted.

G. Permits shall be issued and may be revoked in accordance with Section 5.48.100. In case of a revocation, permits shall be immediately surrendered to the chief of police. Appeals of a decision to deny, revoke or refuse to renew a permit shall be in accordance with Section 5.48.110. No person shall reapply for a permit which has been revoked or denied for a minimum of one year following the date that the denial or revocation is final.

H. Permits shall be subject to the requirements of Section 5.48.120.

I. Every person to whom a massage technician permit has been granted pursuant to this chapter shall be issued an identification badge by the Gardena police department which shall contain the massage technician’s name and the photograph submitted with the application. The badge shall be worn so as to be readily visible at all times while the technician is on the premises of the massage establishment. (Ord. 1714 § 1 (part), 2010)