Chapter 13
LICENSES1

Sections:

ARTICLE I. IN GENERAL

13.1    Definitions.

13.2    Required; compliance with chapter.

13.3    Reserved.

13.4    Separate license required for each branch of a fixed place of business; required for each type of business transacted at same location; exemption.

13.5    Issuance; contents.

13.6    Nontransferable.

13.7    Display.

13.8    Reserved.

13.9    Civil obligation to pay fee.

13.10    Payment of fees.

13.11    Determination of gross annual receipts—Generally.

13.12    Same—Examination of books and papers.

13.13    Same—Affidavits to be confidential; license to omit amount of license tax paid.

13.14

13.15    Reserved.

13.16    Record of licenses issued.

13.17    License collector; enforcement.

13.18    Police officers and building inspectors, ex officio license inspectors—Generally.

13.19    Same—Written report.

13.20    Suits for delinquent license fees—Generally.

13.21    Same—Attachments.

ARTICLE II. LICENSING PERIODS

13.22    Annual licenses; proviso.

13.23

13.27    Reserved.

13.28    Other licenses.

13.29    Penalty.

ARTICLE III. EXEMPTIONS FROM LICENSE TAX

13.30    Charities, etc.

13.31    Interstate commerce—Application for adjustment of discriminatory license fees—Generally.

13.32    Same—Same—Affidavits; testimony; investigation; refunds.

13.33    Same—Same—Methods of fixing license fee.

13.34    Same—Same—Right of appeal.

13.35    Disabled veterans.

13.36    Reserved.

13.37    Burden of establishing right to exemption in doubtful cases.

ARTICLE IV. FEES, APPLICATIONS AND ADDITIONAL REQUIREMENTS

13.38    Schedule of license taxes—Fixed by resolution.

13.39    Same—Based on gross receipts.

13.40    Same—Certain enumerated businesses.

13.41    Same—Transient businesses.

13.42    Vehicle deliveries; businesses outside city.

13.43    Applications.

13.44    Additional requirements.

ARTICLE V. REVOCATION AND SUSPENSION

13.45    Revocation or suspension; violation; notice; hearing.

13.46    Revocation; not to be reissued for one year.

ARTICLE VI. REGULATION OF MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS

13.47    Purpose and intent.

13.48    Definitions.

13.49    Exemptions.

13.50    Permit requirements for massage establishments, managing employees and massage practitioners.

13.51    Educational requirements for massage practitioners, and holders of massage establishment permits, and managing employee permits.

13.52    Applications for massage establishment permits, managing employee permits, and massage practitioner permits.

13.53    Grant or denial of application for massage establishment permit, managing employee permit, massage practitioner permit.

13.54    Business license.

13.55    Operating requirements for massage establishments.

13.56    Sanitation requirements/condition of premises.

13.57    Prohibited acts.

13.58    Out-call massage services.

13.59    Transfer of massage establishment permit, managing employee permit, massage practitioner permit.

13.60    Expiration and renewal of massage establishment permits, managing employee permits, and massage practitioner permit—Payment of renewal fee.

13.61    Suspension and revocation of massage establishment permits, managing employee permits and massage practitioner permits.

13.62    Criminal penalties.

13.63    Massage establishment operated in violation of this article deemed a public nuisance.

ARTICLE VII. MEDICAL MARIJUANA DISPENSARY AS A PROHIBITED USE

13.65    Repealed.

ARTICLE VIII. TOBACCO RETAILER PERMIT

13.66    Definitions.

13.67    Purpose.

13.68    General regulations.

13.69    Application procedure.

13.70    Issuance of permit.

13.71    Permit renewal and expiration.

13.72    Fee for permit.

13.73    Permit conveys a limited, conditional privilege.

13.74    Compliance monitoring.

13.75    Tobacco retailing without a permit.

13.76    False and misleading advertising prohibited.

13.77    Penalties and enforcement.

13.78    Civil penalties, suspension or revocation of permit.

13.79    Revocation of a wrongly issued permit.

13.80    Suspension or revocation of a tobacco retailer permit, or forfeiture of seized tobacco and tobacco paraphernalia process.

13.81    Hearing.

13.82    New permit after revocation.

13.83    Nondiscrimination.

ARTICLE I. IN GENERAL

13.1 Definitions.

Unless it is apparent from the context that another meaning is intended, the following words when used herein shall have the meaning attached to them by this section:

(a) “Business” means professions, trades, and occupations and all and every kind of calling carried on for profit or livelihood.

(b) “Fixed place of business” is defined to be the premises within the city where a business is continuously conducted from day to day and regularly kept open for the purposes of such business, and is intended to and shall include apartment houses, auto courts, hotels, inns, motels, motor courts, group residences, and trailer parks.

(c) Transient Business. Every business not conducted at a fixed place of business is, for the purposes of this chapter, termed a “transient business,” whether the person conducting such transient business is or is not, a resident of the city.

(d) Gross Receipts. As used in this chapter, “gross receipts” shall mean the total amount of the sale price of all sales and the total amount charged or received for the performance of any act, service, or employment of whatever nature it may be for which a charge is made or credit allowed, whether or not such service, act or employment is done as a part of or in connection with the sale of materials, goods, wares, or merchandise. Included in “gross receipts” shall be all receipts, cash, credits, and property of any kind or nature, and any amount for which credit is allowed by the seller to the purchaser without any deduction therefrom on account of the cost of the property sold, the cost of the materials used, labor or service costs, interest paid or payable, or losses or other expenses whatsoever. Excluded from “gross receipts” shall be cash discounts allowed and taken on sales; any tax required by law to be included in or added to the purchase price and collected from the consumer or purchaser; and such part of the sale price of property returned by purchasers upon recision of the contract of sale as is refunded either in cash or by credit. (Ord. No. 646, § 1; Ord. No. 900, § 1, 11-2-

70; Ord. No. 85-7, §§ 1, 2, 2-19-85; Ord. No. 91-4, § 1, 3-4-91)

13.2 Required; compliance with chapter.

The carrying on of any business, trade, calling, profession, or occupation without first having procured a license from the city so to do, or without complying with any and all regulations of such business, trade, calling, profession, or occupation, shall be deemed a separate violation of this chapter for each and every day that such business, trade, calling, profession, or occupation is carried on. (Ord. No. 646, § 2; Ord. No. 91-4, § 2, 3-4-91)

13.3 Reserved.

    Editor’s note: Ord. No. 91-4, § 3, adopted March 4, 1991, repealed § 13.3 in its entirety. Former § 13.3 was concerned with separate violations of chapter, and derived from § 3 of Ord. No. 646.

13.4 Separate license required for each branch of a fixed place of business; required for each type of business transacted at same location; exemption.

(a) A separate license must be obtained for each branch or location of a fixed place of business transacted and carried on, and for each separate type of business at the same location, and each license shall authorize the licensee to transact and carry on only the business licensed thereby at the location or in the manner designated in such license; provided, the warehouses and distributing plants used in connection with and identical to a business licensed under the provisions of this chapter shall not be deemed to be separate places of business or branch establishments. Every person engaging in a business at a fixed place of business in the city, as herein defined, and who has procured a license therefor, shall have the right to deliver the goods, wares or merchandise for which such license was issued, at any place in the city, without procuring any additional license therefor.

(b) Every person engaging in any transient business in the city, as herein defined, and who has procured a license therefor, shall have the right to sell the goods, wares or merchandise or engage in the business for which such transient license was issued at a fixed place of business without procuring any additional license therefor.

(c) In the issuance of transient licenses and licenses for fixed places of business, no discrimination or distinction shall ever be made against nonresidents of the city in favor of residents of the city, and residents and nonresidents of the city shall be entitled to equal rights in all matters relating to the issuances of licenses. (Ord. No. 646, § 4; Ord. No. 91-4, § 4, 3-4-91)

13.5 Issuance; contents.

It shall be the duty of the license collector to issue a license under this chapter for every person liable to pay a license hereunder, and to state in each license the period of time covered thereby, the name of the person to whom issued, the name of the business licensed, the character of business licensed, and the location or place of business where the same is to be carried on. (Ord. No. 646, § 5; Ord. No. 85-7, § 3, 2-19-85)

13.6 Nontransferable.

No license granted or issued under any provision of this chapter shall be in any manner transferred or assigned, or authorize any person, other than is therein mentioned or named to carry on the licensed business. (Ord. No. 646, § 6)

13.7 Display.

Every person having a license under the provisions of this chapter for carrying on business at a fixed place of business, shall keep such license posted for exhibition while in force in some conspicuous part of such place of business. Every person having such a license and not having a fixed place of business, shall carry such license with him at all times while carrying on the business for which the same was granted. Every person having a license shall produce and exhibit the license, when applying for a renewal thereof, and whenever requested to do so by any police officer, or by any officer authorized to issue, inspect, or collect licenses. (Ord. No. 646, § 7; Ord. No. 91-4, § 5, 3-4-91)

13.8 Reserved.

    Editor’s note: Ord. No. 91-4, § 6, adopted March 4, 1991, repealed § 13.8 in its entirety. Former § 13.8 was concerned with a license for being a debt to the city, and derived from § 8 of Ord. No. 646.

13.9 Civil obligation to pay fee.

The conviction and punishment of any person for transacting any business without a license shall not excuse or exempt such person from the payment of such license fee due or unpaid at the time of such conviction, and nothing herein shall prevent a criminal prosecution for any violation of the provisions of this chapter. (Ord. No. 646, § 9)

13.10 Payment of fees.

All license fees shall be paid in advance in lawful money of the United States at the office of the license collector of the city, or such other place as the city council may subsequently designate by resolution or ordinance. (Ord. No. 646, § 10)

13.11 Determination of gross annual receipts—Generally.

On the first day of January of each year, every person, required to pay a general business license tax as provided by section 13.39 shall file with the license collector a verified affidavit in writing, showing the gross annual receipts of the business of such person for which a license tax is required to be paid, for the previous year. If the business be owned, conducted, or carried on, by a corporation, such affidavit must be sworn to and filed by its president, vice-president, secretary, assistant secretary, treasurer, assistant treasurer, chief accounting officer, or managing agent. (Ord. No. 646, § 12; Ord. No. 85-7, § 4, 2-19-85)

13.12 Same—Examination of books and papers.

The license collector, or any deputy license collector, may, in all cases, examine the books and accounts of any person required to file such affidavit, for the purpose of verifying the same or for the purpose of determining the amount of gross receipts of such person. If any person owning, conducting, or carrying on, any business in the city, and required to file such affidavit as provided in this chapter, shall fail, neglect, or refuse to file any such affidavit with the license collector within thirty (30) days after the same is required to be filed as herein provided, or shall fail or refuse to permit the license collector, or any deputy license collector, to examine the books and accounts of such business for the purpose of verifying any filed affidavit or determining the amount of gross receipts, the license collector shall arbitrarily assess the license tax on such business at the rate of two thousand dollars ($2,000.00) per year until such affidavit is filed, examination of books and accounts permitted and the proper fee and penalties are determined and paid. (Ord. No. 646, § 12; Ord. No. 85-7; § 5, 2-19-85)

13.13 Same—Affidavits to be confidential; license to omit amount of license tax paid.

All affidavits filed pursuant to the provisions of the two preceding sections shall be confidential and shall not be subject to public inspection. It shall be the duty of the license collector to so preserve and keep the affidavits that the contents thereof may not become known except to the person charged by law with the administration of this chapter, and except when it is necessary to divulge such information for the purposes of enforcing the provisions of this chapter. No license issued shall in any manner indicate thereon the amount of the license tax paid, when the amount thereof is established by the amount of gross monthly receipts. (Ord. No. 646, § 12)

13.14—13.15 Reserved.

    Editor’s note: Ord. No. 91-4, § 7, adopted March 4, 1991, repealed § 13.14 and § 13.15 in their entirety. Former § 13.14 was concerned with the necessity of obtaining a license and paying license tax, and derived from § 13 of Ord. No. 646. Former § 13.15 was concerned with the signature of mayor and countersignature, and derived from § 14 of Ord. No. 646; and Ord. No. 85-7, § 6, adopted February 19, 1985.

13.16 Record of licenses issued.

The license collector shall keep in his office a license record in which shall be entered the names of all persons to whom a license is issued under the provisions of this chapter, the date of issuance of such license, the nature of the business, show, exhibition or game, thereby licensed, the time for which the license is issued, the amount of license tax paid therefor, the location or place of business where the same is to be carried on, and the name of such business. (Ord. No. 646, § 15; Ord. No. 85-7, § 7, 2-19-85)

13.17 License collector; enforcement.

The license collector shall make diligent effort to discover all persons engaged in conducting or carrying on any business or game or exhibition or exhibiting any show, in the city, for which a license is required by the provisions of this chapter, and shall enforce collection of all unpaid license fees. (Ord. No. 646, § 16; Ord. No. 85-7, § 8, 2-19-85)

13.18 Police officers and building inspectors, ex officio license inspectors—Generally.

In addition to the other duties imposed upon them by law, all police officers and building inspectors of the city shall be ex officio license inspectors and shall exercise due diligence to cause the provisions of this chapter to be carried into effect, and shall, upon the request of the city attorney, procure such evidence as may be required for the prosecution of any civil or criminal action brought under the provisions of this chapter. (Ord. No. 646, § 17; Ord. No. 85-7, § 9, 2-19-85)

13.19 Same—Written report.

Every police officer shall examine and ascertain whether every business, show, exhibition and game requiring a license, which may come to his knowledge, is duly licensed; and shall forthwith report in writing to the license collector the name of any person whom he may discover engaged in, conducting or carrying on any such business or game or exhibiting any such show or exhibition without having the license therefor required by law. (Ord. No. 646, § 17; Ord. No. 85-7, § 10, 2-19-85)

13.20 Suits for delinquent license fees—Generally.

The city administrator may at any time bring suit in the name of the city for the recovery of license tax. In such actions a penalty of fifty (50) percent and costs shall be added to the amount of any judgment recovered by the city in addition to any other penalty or penalties then due or owing. (Ord. No. 646, § 18; Ord. No. 85-7, § 11, 2-19-85; Ord. No. 91-4, § 8, 3-4-91)

13.21 Same—Attachments.

In all suits instituted by the city as provided in the preceding section for the collection or the recovery of any license tax hereby imposed, the license collector, or the city attorney may make the necessary affidavit for a writ of attachment against the property of the defendant therein, and such writ shall thereupon be issued without any undertaking or other security being given by or on behalf of the city. (Ord. No. 646, § 19)

ARTICLE II. LICENSING PERIODS

13.22 Annual licenses; proviso.

The license year for businesses with fixed fees shall be the fiscal year commencing on July 1 and ending on June 30 next succeeding. The license year for licenses based on gross receipts shall be the calendar year commencing on January 1 and ending on December 31 next succeeding. The annual licenses shall be due and payable, and shall constitute a debt due and owing, to the city on the first day of each tax year.

Any person doing business for less than the full fiscal year for which an annual fixed license fee is provided shall be required to pay the full annual rate; provided, that any such person commencing any business after January first of any fiscal year shall be required to pay only one-half of the full annual rate for the balance of such fiscal year. (Ord. No. 646, § 10; Ord. No. 85-7, § 12; 2-19-85)

13.23—13.27 Reserved.

    Editor’s note: Ord. No. 85-7, § 13, adopted February 19, 1985, repealed §§ 13.23—13.27 in their entirety. Former §§ 13.23—13.27 were concerned with semiannual, quarterly and monthly licenses and derived from Ord. No. 646, § 10.

13.28 Other licenses.

The other licenses provided for in this chapter shall be due and payable to the city in advance of the license period. (Ord. No. 646, § 10; Ord. No. 91-4, § 9, 3-4-91)

13.29 Penalty.

If any license provided by this chapter shall remain unpaid after the last business day of the month due, or if received in the mail with a postmark after the month due, a penalty of twenty-five (25) per cent shall be added to the amount of such license and be collected by the employee having charge of the collection of the licenses. An additional penalty of ten (10) per cent shall be added for each additional month, or fraction thereof, during which the license remains unpaid. (Ord. No. 646, § 10; Ord. No. 89-4, § I, 2-21-89)

ARTICLE III. EXEMPTIONS FROM LICENSE TAX

13.30 Charities, etc.

The provisions of this chapter shall not be deemed or construed to require the payment of a license to conduct, manage, or carry on any business, occupation, or activity, or require the payment of any license from any institution or organization which is conducted, managed, or carried on wholly for the benefit of charitable purposes or from which profit is not derived, either directly or indirectly, by any individual, firm, or corporation; nor shall any license be required for the conducting of any entertainment, dance, concert, exhibition, or lecture on scientific, historical, literary, religious, or moral subjects, whenever the entire receipts from the same are to be appropriated to any church or school, or to any religious or benevolent purpose; nor shall any license be required for the conducting of any entertainment, dance, concert, exhibition, or lecture, whenever the receipts from the same are to be appropriated for the purposes and objects for which such association or organization was formed and from which profit is not derived, either directly or indirectly, by any individual, firm, or corporation; provided, however, that nothing in this section contained shall be deemed to exempt any such institution or organization from complying with the provisions of this ordinance requiring such institution or organization to obtain a permit from the city council, or proper officer, to conduct, manage, or carry on any profession, trade, calling or occupation. (Ord. No. 646, § 11)

13.31 Interstate commerce—Application for adjustment of discriminatory license fees—Generally.

None of the license fees provided for by this chapter shall be so applied as to occasion an undue burden upon interstate commerce. In any case where a license fee is believed by a licensee or applicant for license to place an undue burden upon such commerce, he may apply to the city license collector for an adjustment of the fee so that it shall not be discriminatory, unreasonable, or unfair as to such commerce. Such application may be made before, at, or within six months after payment of the prescribed license fee. (Ord. No. 646, § 11)

13.32 Same—Same—Affidavits; testimony; investigation; refunds.

The applicant described in the preceding section shall, by affidavit and supporting testimony, show his method of business and the gross volume or estimated gross volume or estimated gross value of business and such other information as the city license collector may deem necessary in order to determine the extent, if any, of such undue burden on such commerce. The city license collector shall then conduct an investigation, comparing applicant’s business with other businesses of like nature and shall make findings of fact from which he shall determine whether the fee fixed by this chapter is unfair, unreasonable or discriminatory as to applicant’s business and shall fix as the license fee for the applicant, an amount that is fair, reasonable and nondiscriminatory, or, if the fee has already been paid, shall order a refund of the amount over and above the fee so fixed. (Ord. No. 646, § 11)

13.33 Same—Same—Methods of fixing license fee.

In fixing the fee to be charged, the city license collector shall have the power to base the fee upon a percentage of gross sales, or any other method which will assure that the fee assessed shall be uniform with that assessed on businesses of like nature, so long as the amount assessed does not exceed the fees as prescribed by this chapter. Should the city license collector determine the gross sales measure of the fee to be the fair basis, he may require the applicant to submit, either at the time of termination of applicant’s business in the city or annually, a sworn statement of the gross sales and pay the amount of fee therefor; provided, that no additional fee during any one calendar year shall be required after the licensee shall have paid an amount equal to the annual license as provided in this chapter. (Ord. No. 646, § 11; Ord. No. 85-7, § 14, 2-19-85)

13.34 Same—Same—Right of appeal.

Any person aggrieved by the action of the city license collector in the assessing of the fee as provided in this chapter shall have the right of appeal to the city council. Such appeal shall be taken by filing with the city council, within fourteen days after notice of the action complained of has been mailed to such person’s last known address, a written statement setting forth fully the grounds for the appeal. The city council shall set a time and place for a hearing on such appeal and notice of such hearing to be held at a regular council meeting within thirty days of receipt by the council of notice of appeal, shall be given to the appellant. The decision and order of the council on such appeal shall be final and conclusive. (Ord. No. 646, § 11)

13.35 Disabled veterans.

Every honorable discharged soldier, sailor, or marine from the military or naval service of the United States who is unable to earn a livelihood by manual labor, may hawk, peddle or vend any kind of goods, wares, or merchandise, other than spirituous, vinous, malt or alcoholic liquors, in the city, without paying a license tax or obtaining a license therefor, under a permit for that purpose issued by the license collector; and the city collector shall issue such permit to any person making satisfactory proof that he is entitled thereto under the provisions thereof; provided, that no such permit shall be issued until the applicant complies with the regulations for soliciting as set forth in Chapter 16A. (Ord. No. 646, § 11)

13.36 Reserved.

    Editor’s note: Ord. No. 85-7, § 15, adopted February 19, 1985, repealed § 13.36. Former § 13.36 was concerned with farmers, poultrymen, or horticulturists, and derived from Ord. No. 646, § 11.

13.37 Burden of establishing right to exemption in doubtful cases.

In all cases of doubt as to any applicant being entitled to an exemption from license tax, or from the application of any of the provisions of this chapter, the burden of establishing the right to exemption shall be upon the applicant. All applications for exemption in such cases shall be referred to the city council, which shall consider and act upon the same and grant or refuse such exemptions as in the use of its discretion it shall deem just. (Ord. No. 646, § 11)

ARTICLE IV. FEES, APPLICATIONS AND ADDITIONAL REQUIREMENTS

13.38 Schedule of license taxes—Fixed by resolution.

The rates of license fees for all businesses in the city shall be fixed and established by council resolution, and the same shall be paid by all persons engaged in business in the city. (Ord. No. 646, § 20; Ord. No. 85-7, § 17, 2-19-85)

13.39 Same—Based on gross receipts.

Every person conducting, managing or carrying on at a fixed place of business in the city any business, trade, profession or calling, whether as a merchant or otherwise, unless specifically licensed by section 13.40 of this article, shall pay as a license tax for revenue purposes only an amount which shall be fixed and regulated by council resolution based upon the gross annual receipts of such business, trade, profession or calling. (Ord. No. 646, § 21; Ord. No. 679, § 1; Ord. No. 85-7, § 18, 2-19-85)

13.40 Same—Certain enumerated businesses.

The council may by resolution identify specific businesses, trades, professions, or callings, conducted at a fixed place of business in or out of the city, including vending machines, jukeboxes and amusement devices, for which annual license fees may be fixed and established by council resolution. (Ord. No. 646, § 22; Ord. No. 676, § 1; Ord. No. 679, § 2; Ord. No. 766, § 1; Ord. No. 840, § 1, 1-6-69; Ord. No. 844, § 1, 2-17-69; Ord. No. 874, § 1, 11-17-69; Ord. No. 875, §§ 1, 2, 12-5-69; Ord. No. 75-9, § 1, 6-16-75; Ord. No. 80-13, § 1, 4-21-80; Ord. No. 83-11, § 1, 7-18-83; Ord. No. 85-7, § 19, 2-19-85; Ord. No. 91-4, § 10, 3-4-91)

13.41 Same—Transient businesses.

All peddlers, solicitors, vendors and other transient businesses must comply with the provisions of Chapter 16A of this Code. In addition, the council may by resolution fix and establish license fees for such itinerant merchants on a daily, weekly, monthly or other appropriate basis. (Ord. No. 646, § 23; Ord. No. 85-7, § 20, 2-19-85; Ord. No. 91-4, § 11, 3-4-91)

13.42 Vehicle deliveries; businesses outside city.

The council may by resolution fix and establish annual license fees for all businesses, trades or callings with a fixed place of business outside the city which make retail or wholesale deliveries or pick-ups within the city limits. (Ord. No. 646, § 24; Ord. No. 85-7, § 21, 2-19-85)

13.43 Applications.

All business, trades, professions or callings subject to this chapter shall make application for licenses by completing forms provided by the department of finance and furnishing all information required to administer this chapter. Application forms shall be reviewed for compliance by all departments responsible for enforcing federal and state laws and the City Code. If all requirements are met and the appropriate fees paid, the license shall be issued. (Ord. No. 85-7, § 22, 2-19-85)

    Editor’s note: Ord. No. 85-7, § 22, adopted February 19, 1985, amended the Code by adding a new § 13.43 which has been treated as superseding the former provisions of this section. Former § 13.43 was concerned with wholesale vehicle deliveries and derived from Ord. No. 646, § 25.

13.44 Additional requirements.

(a) Generally. All business, trades, professions and callings shall show compliance with all federal, state and local laws and ordinances which apply to each and shall obtain clearances set forth in section 13.43, prior to issuance of a business license.

(b) Cardrooms. No license for the operation of any cardroom shall be issued without proof of a valid registration under the state Gaming Registration Act.

(c) Carnivals, Circuses, Amusement Rides, Menageries and Fairs. All applications for the business of conducting a carnival or fair, including all manner of shows, exhibitions and entertainments, together with sales stands, or eating stands or places, and the peddling of novelties or notions, and all other activities incident thereto, must be made to the city council, on blanks properly filled out and sworn to, to be procured from the license collector and filed with the city clerk at least thirty (30) days before such occasion. The city council shall have the right to refuse to grant such license if it shall determine that the granting thereof will be contrary to the preservation of the public peace, safety or welfare, or will be unduly detrimental to the persons or property of others. If such license is granted, the city council shall have the right and require what shows, exhibitions or entertainments or activities are proper, or may be permitted, and the city council shall have the right to impose such reasonable restrictions or limitations therein as it may determine shall be necessary to the preservation of the public peace, safety or welfare, or which will tend to protect the life and property of others, and its actions in the premises shall be final and conclusive. In the event that any person to whom such license is granted shall violate or fail to perform any of the restrictions, limitations, terms or conditions of any license granted under this chapter, the city council shall have the right to revoke such license, and its actions in the premises shall be final and conclusive.

(d) Garage Sales. Notwithstanding the provisions of this chapter and the zoning laws of the city, a person may obtain a license to conduct a “garage sale” at his place of residence for a period not to exceed seven (7) days once each year. Such license shall state the name of the licensee, the location or address where the sale is to be conducted, and the permitted dates of sale, and shall be issued for a fee to be established by council resolution. A “garage sale” is defined as a sale conducted entirely within a residence or garage between the hours of 8 a.m. and 8 p.m. by the resident thereof of personal property owned by him for at least one year prior to the date of sale and not acquired for the purpose of resale.

(e) Vending Machines, Jukeboxes and Amusement Devices. Each owner of any type of vending machine, or the owner or proprietor of the premises where such machine is located, shall pay in advance for each and every type of machine operated by such owner or agent.

This provision shall apply to any vending machine which is located upon but is not the principal activity of a licensed business premises. If the vending machines and equipment are the principal business activity conducted on the premises, they shall be, for the purpose of this chapter, considered a part of the operation and carrying on of the business and the license therefor shall be governed by section 13.39 or 13.40.

In addition to other remedies provided by law, the amount due and unpaid on the vending machine license tax, including interest penalties and costs as provided herein, shall be a lien in favor of the city against unlicensed vending machines. If the liability remains unpaid for a period of sixty (60) days, at the written direction of the license collector, the unlicensed machines shall be impounded by the chief of police until the liability is satisfied. If the liability remains unsatisfied for a period of six (6) months after impounding, the city may sell the machines to satisfy the liability.

The city shall issue license stamps which shall be affixed in a conspicuous place by the owner or agent to all vending machines duly licensed hereunder. A penalty of two dollars ($2.00) per day shall be assessed for each failure to affix the required stamp to each machine. Any vending machine to which such a stamp is not affixed may be impounded by the chief of police as provided herein until all provisions of this section have been complied with and all license fees and penalties have been paid.

(f) Private Patrols. No license for the operation of a private patrol, as defined in section 18A.1, shall be issued without proof of valid licensing by the California Bureau of Collection and Investigative Services. (Ord. No. 85-7, § 23, 2-19-85; Ord. No. 86-19, §§ 49, 50, 10-6-86)

    Editor’s note: Ord. No. 85-7, § 23, adopted February 19, 1985, amended the Code by adding a new § 13.44 which has been treated as superseding the former provisions of this section. Former § 13.44 was concerned with substitute delivery vehicles and derived from Ord. No. 646, § 25.

ARTICLE V. REVOCATION AND SUSPENSION

13.45 Revocation or suspension; violation; notice; hearing.

In the event that the chief of police has reasonable cause to believe and does believe that any licensee or other person employed by or representing such licensee is violating any of the provisions of this chapter or any other law or ordinance relating to the business of the licensee, or is conducting or has conducted or operated such business so as to be detrimental to the public morals or the public welfare, all facts and information relating to such alleged violation or conduct shall be reported to the city administrator. Prior to taking action affecting the license, the City Administrator, at his sole discretion, shall elect to proceed according to either subsection (1) or subsection (2) below.

(1) A hearing shall be set for a regular or special meeting of the city council, and the licensee shall be given at least ten (10) days written notice by registered or certified mail of the substance of the alleged violation and the date of said hearing. The city council shall hear and receive evidence, written and oral, upon all issues involved, and shall have the power to revoke, modify or suspend such license. The decision of the city council shall be final and binding upon all parties.

(2) The matter shall be set for an administrative hearing to revoke, modify, or suspend the license pursuant to the city’s administrative hearing policy, if such a policy has been adopted by the city council. (Ord. No. 823, § 1, 7-1-68; Ord. No. 99-24, § I, 12-20-99; Ord. No. 2002-02, § I, 1-3-00)

13.46 Revocation; not to be reissued for one year.

If a license is revoked under Section 13.45, Section 16A.12 or Section 16A.13, no license of a similar nature, shall be issued for a period of one (1) year from the date of said revocation to the same licensee, nor to any other applicant acting on his behalf. (Ord. No. 823, § 1, 7-1-68)

ARTICLE VI. REGULATION OF MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS

13.47 Purpose and intent.

(a) Purpose.

(1) In enacting these regulations, the City of Gilroy city council (“city council”) recognizes that massage is a viable professional field offering the public valuable health and therapeutic services.

(2) It is the purpose and intent of the city council that the operation of massage establishments and persons offering massage be regulated in the interests of public health, safety, and welfare by providing minimum building, sanitation, and health standards and to ensure that persons offering massage shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered.

(3) It is the intent of this Article VI to enact regulations to ensure that those offering massage services are qualified and trained and can be expected to conduct their work in a lawful and professional manner. The city council finds that existing controls have not satisfactorily addressed or regulated serious police problems, nor have the existing controls regulated the profession so as to discourage the use of the profession for objectionable and illegal purposes.

(b) Conflicts with Other Provisions of This Code. In the event of any conflicts or inconsistencies between the provisions of this Article VI and the remaining provisions of this Chapter 13 or with the provisions of any other chapter(s) of the City Code, the provisions of this Article VI shall control, unless to do so would be inconsistent with the stated purpose of this Article VI.

(c) Responsibility for Enforcement. The primary responsibility for enforcement of the provisions of this Article VI shall be vested in the chief of police. (Ord. No. 2010-02, § I, 1-11-10)

13.48 Definitions.

For purposes of this article, the following words, terms and phrases are defined as follows:

“California Massage Therapy Council (CAMTC)” means the governing nonprofit board that is authorized to evaluate qualifications of massage therapists and issue certification in the State of California. There are two (2) levels of certification: CMT (certified massage therapist) and CMP (certified massage practitioner).

“City administrator” means the city administrator of the City of Gilroy, or his or her designee.

“Managing employee” means any employee of a massage establishment who has been designated by the holder of the massage establishment permit to manage the business in his/her absence. The managing employee may perform massages at the business only if he/she obtains and maintains in effect a massage practitioner permit.

“Massage” means any method of treating the external parts of the human body by bathing, rubbing, pressing, stroking, kneading, tapping, vibrating, or touching or stimulating with the hands or any part of the body, or any instrument.

“Massage establishment” means any establishment having a fixed place of business in the city in which massages are given in return for compensation of any type, including but not limited to any hot tub/sauna establishment in which massage services are made available to clients.

“Massage practitioner” means any person, including a nonmedical massage practitioner or a certified massage therapist, who performs massage in return for compensation of any type who has completed a minimum of two hundred (200) or more verifiable hours in a resident course of study from a recognized school on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology and hygiene, with at least seventy-five (75) hours of the required two hundred (200) hours in the areas of demonstration and practice of massage techniques from a recognized school, and which provides a diploma or certificate of completion upon successful completion of such resident course of study.

“Out-call massage service” means any business which provides massage services at a location designated by the customer or client or the massage practitioner or the out-call massage service, other than at a designated approved massage establishment.

“Person” means any individual, partnership, firm, association, corporation, joint venture or any other combination of individuals for the purpose of doing business.

“Police chief” means the Gilroy police chief or his or her designee.

“Recognized school” means any school or institution of higher learning which has been approved pursuant to California Education Code section 94300 et seq. or other applicable state law or regulations of California or another state, or any public school recognized by the International Massage Association, Inc., Associated Bodyworker and Massage Professionals, Inc., American Massage Therapy Association, Inc., National Certification Board of Therapeutic Massage, or other recognized association which requires a resident course of study of a minimum of two hundred (200) verifiable hours on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology and hygiene, with at least seventy-five (75) hours of the required two hundred (200) hours in the areas of demonstration and practice of massage techniques, and which provides a diploma or certificate of completion upon successful completion of such course of study. Schools offering correspondence course(s) nor requiring actual attendance of class shall not be deemed a recognized school. The city shall have the right to confirm the fact that the applicant has actually attended classes in a recognized school for the aforementioned minimum time period.

“State certificate holder” means a person who holds a current and valid California state certificate from the CAMTC as a massage practitioner or massage therapist, per Business and Professions Code sections 4600 through 4620. (Ord. No. 2010-02, § I, 1-11-10)

13.49 Exemptions.

The provisions of this chapter shall not apply to:

(1) Physicians, surgeons, chiropractors, osteopaths, nurses, physical therapists or other health professionals who are duly licensed to practice their respective professions under the laws of the State of California.

(2) Persons who hold a current and valid CAMTC state certification and who are practicing consistent with the qualifications and requirements of such certificate.

(3) Massage practitioners and massage practitioner trainees who are performing massage in the offices of a licensed physician, surgeon, chiropractor, osteopath, physical therapist or other licensed medical professional, or at a hospital, nursing home, convalescent home, hospice or sanitarium when and while under the direct supervision of a licensed medical professional. Massage practitioners who are independent contractors of chiropractors are not exempt from this article.

(4) Barbers or cosmetologists who are duly licensed under the laws of the State of California while performing massage within the scope of their licenses.

(5) Massage practitioners who perform massages which are clearly incidental to the operation of a personal fitness training center, gymnasium, athletic facility or health club, when the giving of massage for compensation is not a principal function of such businesses. In determining whether massage constitutes a principal or incidental function of personal fitness training centers, gymnasiums, athletic facilities or health clubs, the police chief shall consider the following: the percent of income derived from massages, including the amount of floor space devoted to the massage business, said floor space and income percentages shall not exceed twenty-five percent (25%); the number of employees assigned to massage services; and the manner in which the business advertises and holds itself out to the public. The decision of the police chief regarding whether a particular business is entitled to exemption may be appealed to the city administrator through the procedures set forth in section 13.53.

(6) Persons administering massages or health treatments involving massage to other persons who are participating in a recreational or special event that has been approved by the city; provided, that the following conditions are met:

a. The massage services are made available equally to all participants in the event;

b. The event is open to participation by the general public or a significant segment of the public;

c. The massage services are provided during the event in an open environment at the site of the event;

d. The sponsors of the event have approved the provision of massage services at the event; and

e. The persons providing the massage services are in compliance with all applicable City Codes and other laws.

(7) Licensed manicurists and pedicurists. (Ord. No. 2010-02, § I, 1-11-10)

13.50 Permit requirements for massage establishments, managing employees and massage practitioners.

(a) Massage Establishment Permits. No person shall establish, operate or maintain a massage establishment within city limits without first obtaining from the police chief, and maintaining in effect, a massage establishment permit. It is unlawful to operate, establish or maintain a massage establishment while the massage establishment permit issued for such business has been suspended or revoked or has expired.

(b) Managing Employee Permit. No person shall act as the managing employee for a massage establishment within city limits unless he/she has obtained a managing employee permit from the police chief. It is unlawful for any person to act as the managing employee of a massage establishment while his/her managing employee permit has been suspended or revoked, or has expired.

(c) Massage Practitioner Permit. No person shall practice massage or give massages in return for compensation of any type within city limits without obtaining from the police chief and maintaining in effect a massage practitioner permit or has a current and valid state certification through CAMTC. It is unlawful for any person to practice massage or give massages in return for compensation while his/her massage practitioner permit or state certification has been suspended or revoked, or has expired.

(d) A person who obtains a massage establishment permit or a managing employee permit and plans to personally give massages at the business shall also apply for and obtain a massage practitioner permit or must have current and valid state certification through CAMTC. (Ord. No. 2010-02, § I, 1-11-10)

13.51 Educational requirements for massage practitioners, and holders of massage establishment permits, and managing employee permits.

(a) General Educational Requirements. Except as indicated below, all applicants for a massage establishment permit, managing employee permit or massage practitioner permit must meet either of the following educational standards in order to qualify for such permit:

(1) Possession of a diploma or certificate of completion from a recognized school which shows satisfactory completion of a resident course of study of a minimum of two hundred (200) verifiable hours on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology and hygiene, with at least seventy-five (75) hours of the required two hundred (200) hours in the areas of demonstration and practice of massage techniques; or

(2) Possession of a diploma or certificate of completion from a recognized school or public school showing satisfactory completion of a minimum of two hundred (200) verifiable hours or more of a nonrepetitive curriculum which covers the subjects described in subsection (a)(1) of this section, and a transcript or transcripts from a college or junior or community college in the State of California, or a college or junior or community college in another state from which courses would be acceptable for transfer credit to any college in the California State University and College System, which shows completion, with a passing grade or better, of at least eight (8) quarter units or six (6) semester units of courses in health theory, health care, anatomy, physiology, psychology, bio-mechanics or kinesiology.

(b) Exemptions from Educational Requirements. The following persons are exempt from the educational requirements set forth in subsection (a) of this section:

(1) Applicants for a massage establishment permit or managing employee permit who sign a declaration under penalty of perjury that they will not personally give massages at the massage establishment; or

(2) Holders of massage establishment business licenses and massage practitioner business licenses issued by the city before the effective date of the ordinance codified in this article shall have a period of two (2) years from the effective date of the ordinance codified in this article to satisfy the educational requirements set forth in subsection (a) of this section. (Ord. No. 2010-02, § I, 1-11-10)

13.52 Applications for massage establishment permits, managing employee permits, and massage practitioner permits.

(a) Submission of Application. All persons who wish to obtain a massage establishment permit, managing employee permit or massage practitioner permit from the city shall file a written application with the police chief on a form provided by the city, which contains the following information:

(1) The full name, including any nicknames or other names used presently or in the past, and the present address and phone number of the applicant;

(2) The applicant’s two (2) most recent addresses within the last seven (7) years, and the dates of residence at each address;

(3) Proof the applicant is over eighteen (18) years of age;

(4) The applicant’s height, weight and colors of eyes and hair;

(5) The applicant’s driver’s license and/or California I.D. number (if any) and Social Security number;

(6) Documentation to prove that the applicant has a lawful right to work in the United States, which shall also include work visas;

(7) The applicant’s two (2) most recent employers within the last seven (7) years, including their names, addresses and phone numbers, and the position held by the applicant;

(8) The names and addresses of any massage facility or other businesses involving massage by which the applicant has been employed, or self-employed as a massage practitioner, within the past ten (10) years;

(9) Any criminal conviction on the part of the applicant for offenses other than traffic violations within the ten (10) years preceding the date of the application;

(10) Any criminal charges pending against the applicant at the time of the application, other than traffic citations, the name and location of the court in which the criminal charges are pending and the applicable case numbers;

(11) Whether the applicant has ever had a license, certificate or permit related to the practice of massage, or the operation of a massage establishment, or other business involving the practice of massage, suspended or revoked within the ten (10) years preceding the date of the application, the dates and reasons for any such suspensions or revocations, and the name and location of the jurisdiction or public agency which suspended or revoked such license, permit or certificate;

(12) Whether the applicant, including the massage establishment, managing employee or massage practitioner permit applicant, as a member of a corporation or partnership, has ever operated or been employed at any business which has been the subject of an abatement proceeding under the California Red Light Abatement Act (California Penal Code Sections 11225 through 11325) or any similar laws in other jurisdictions. If the applicant has previously worked at such a business, he/she should state on the application the name and address of the business, the dates on which the applicant was employed at such business, the name and location of the court in which the abatement action occurred, the applicable case number and the outcome of the abatement action;

(13) Whether the applicant provided sufficient information to the city’s satisfaction that they meet the educational requirements set forth in section 13.51 (except in cases involving applications for massage establishment permits, or managing employee permits, when the applicant has filed a statement under penalty of perjury that he/she will not personally give massages at the massage establishment);

(14) Whether the applicant has previously applied to the city for a massage establishment permit, managing employee permit, or massage practitioner permit, the date of the previous application and any other name(s) under which the application was made;

(15) In the case of an application for a massage establishment permit or managing employee permit, the proposed name and address of the massage establishment, together with the name and address of any other massage business operated or managed by the applicant or in which the applicant has or had a business interest, within the ten (10) years preceding the date of the application;

(16) 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 acknowledgment from the owner of the property that a massage establishment will be located on his/her property;

(17) Proof of malpractice insurance in the sum of not less than one hundred thousand dollars ($100,000) per massage therapist licensed, or to be licensed, at the massage establishment up to a maximum of five hundred thousand dollars ($500,000); this requirement can be satisfied by malpractice insurance being provided in the name of an individual massage practitioner;

(18) In the case of an application for a massage establishment permit or managing employee permit, whether the applicant intends to personally provide massage services at the business;

(19) Written authorization for the city, its agents and employees, to seek information and to conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant and the managing employee;

(20) The applicant shall advise the city in writing of any change of address or change in fact(s) represented to city which may occur during the city’s processing of the application for a massage establishment permit; and

(21) A statement under penalty of perjury that the applicant has not knowingly and with the intent to deceive made any false, misleading or fraudulent statements or omissions of fact in his/her application or any other documents required by the city to be submitted with the application.

(b) Other Required Information. Applicants for massage establishment permits, managing employee permits and massage practitioner permits shall also submit the following information to the police chief at the time of their application:

(1) A birth certificate or other legal documentation that verifies the identity of the applicant and verifies that the applicant is over eighteen (18) years of age;

(2) A certificate that verifies that the applicant passed the county health department’s protocol;

(3) A diploma, certificate of completion, transcripts from each school or institution from which the massage practitioner has obtained training or other written proof acceptable to the police chief that the applicant has met the educational requirements set forth in section 13.51. Diplomas, certificates of completion and transcripts shall indicate the number of hours or training received by the certificate holder. In the case of applications for a massage establishment permit or managing employee permit only, the applicant may, if applicable, submit to the police chief with his/her application a written statement under penalty of perjury that he/she will not personally give massages at the massage establishment;

(4) Other related information requested by the police chief in order to evaluate the background and qualifications of the applicant for the permit sought. This may include information or documentation to indicate whether the massage establishment or massage practitioner is affiliated with or a member of any recognized national or state massage therapy association or organization.

(c) Payment of Permit Fees. At the time of filing an original application for a massage establishment permit, managing employee permit or massage practitioner permit, applicants shall pay massage establishment permit fees, managing employee permit fees or massage practitioner’s permit fees (as applicable) in an amount established by a resolution of the city council. All fees shall be nonrefundable. If an applicant for a massage establishment permit or managing employee permit is simultaneously applying for a massage practitioner permit because he/she intends to give massages at his/her business, the city shall not charge any additional fees related to the massage practitioner permit.

(d) Processing of Application and Investigation. Upon receipt of an application for a massage establishment permit, managing employee permit or massage practitioner permit, the police chief shall review the application and supplementary material. If it is clear from the face of the application and supplementary materials that the applicant is not qualified for a permit, or the application is incomplete, the application may be denied without further investigation. If it appears from the face of the application and supplementary material that the applicant may be eligible for the permit sought, the police chief shall verify the information submitted by the applicant and shall further investigate the qualifications of the applicant as follows:

(1) Photographs/Fingerprints/Review of Criminal History. The police chief shall either require two (2) passport style photographs and/or take a recent photograph of the applicant. Applicant shall also be responsible for submitting fingerprints pursuant to Lifescan procedures with the county sheriff’s office and pay all costs associated with such submittal. The applicant’s fingerprints will then be submitted to the Department of Justice and the Federal Bureau of Investigation (FBI) for evaluation. Upon receipt of the report from the Department of Justice and the Federal Bureau of Investigation (FBI), the police chief shall review the criminal history (if any) of the applicant.

(2) Investigation of Location and Premises of Massage Establishment or Permit. Upon receipt of an application for a massage establishment permit, the police chief shall refer the application to the city’s fire, building and community development departments, who shall review the application and, if necessary, inspect the premises to ensure that the operation of the business at the designated site will comply with the city’s zoning, building and fire safety standards, and any other applicable city codes. If a use permit is required for the massage establishment, the applicant shall comply with the city’s zoning code.

(3) Additional Investigation. The police chief may conduct additional investigation in a manner authorized by law when necessary to determine whether the applicant meets the qualifications for a permit pursuant to this article. (Ord. No. 2010-02, § I, 1-11-10)

13.53 Grant or denial of application for massage establishment permit, managing employee permit, massage practitioner permit.

(a) Time for Grant or Denial of Applications. The police chief shall grant or deny the application for a massage establishment permit, managing employee permit or massage practitioner permit within sixty (60) days of the applicant’s submission of the application and all required supplementary material. When necessary to conduct a complete investigation of an application, the police chief may extend this time to ninety (90) days.

(b) Grounds for Denial of Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit. The police chief shall deny an application for a massage establishment, managing employee permit or massage practitioner permit if any of the following circumstances exist:

(1) The application is incomplete and/or required supplementary materials are not submitted on a timely basis;

(2) The applicant does not have the required educational qualifications, unless the applicant is exempted from these requirements pursuant to section 13.51(b);

(3) The applicant has previously had a massage establishment permit, managing employee permit, massage practitioner permit or similar license, certificate or permit revoked by the city or any other public agency;

(4) The applicant has made a false, misleading or fraudulent statement or omission of fact in his/her application or other materials submitted with the application;

(5) The applicant, including applicant as a corporation or partnership, or former employer of the applicant while the applicant was so employed, has been successfully prosecuted in an abatement proceeding under the California Red Light Abatement Act (Penal Code sections 11225 through 11325) or any other similar laws in another jurisdiction;

(6) The applicant has been convicted of:

a. An offense which requires registration pursuant to California Penal Code section 290; or a violation of sections 266(h), 266(i), 311 through 311.7, 314, 315, 316, 318 or 647(b), 647(d), 647(f) or 647.1 of the California Penal Code, or equivalent offenses under the laws of another jurisdiction;

b. A prior offense which involves violation of California Health and Safety Code sections 11351 through 11354, 11358 through 11363, 11378 through 11380, or the sale of controlled substances specified in California Health and Safety Code sections 11054, 11056, 11057 or 11058, or equivalent offenses under the laws of another jurisdiction;

c. Any offense involving dishonesty, fraud, deceit or the use of force or violence upon another person; or

d. Any offense involving sexual misconduct with children;

e. For purposes of this section, a plea of nolo contendere may also serve as the basis for the denial of a massage establishment permit, massage practitioner permit or managing employee permit because the above-listed underlying offenses bear a substantial relationship to the qualifications, functions or duties of a massage establishment;

(7) The operation of the massage establishment would violate the city’s zoning, building or fire regulations, or other provisions of law or the City Code.

(c) Notice to Applicant of Grant or Denial of Application. The police chief shall give written notice to the applicant of the grant or denial of the application for a permit by certified mail or by personal service. If the application is denied, the notice shall advise the applicant of the reasons for the denial and of his/her right to appeal the decision to the city administrator through the procedures set forth in subsection (d) of this section.

(d) Appeal of Denial of Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit to City Administrator. Upon the denial of an application for a massage establishment permit, managing employee permit or a massage practitioner permit by the police chief, the applicant may appeal to the city administrator through the following procedures:

(1) Request for Appeal Hearing. The applicant shall file a written request for an appeal hearing, which states the specific grounds on which the decision of the police chief to deny the permit is contested, with the city administrator’s office within ten (10) days of the personal service of the police chief’s decision to the applicant at the most recent home or business address on file with the police department, or within ten (10) days of service of the police chief’s decision in the United States mail by certified mail.

(2) Notice of Time and Place of Hearing. Upon receipt of a timely request for an appeal hearing, the city administrator’s office shall notify the applicant in writing of the date, time and place of the hearing before the city administrator, which shall not be less than ten (10) days after the service of such written notice on the applicant by in-person delivery at the most recent home or business address on file with the city or ten (10) days after the deposit of the notice in an envelope addressed to the applicant in the United States mail by certified mail.

(3) Hearing before City Administrator. At the hearing, both the applicant and the police chief shall have the right to appear and be represented by counsel, and to present evidence and arguments relevant to the grounds on which the decision to deny the application is appealed. The burden of proof shall be on the applicant to show that he/she meets the qualifications for a massage establishment permit, managing employee permit, massage practitioner permit and is entitled to the issuance of such permit.

(4) Decision of City Administrator. Within ten (10) days of the hearing, the city administrator shall issue a written decision, which states whether the decision of the police chief to deny the application is upheld or reversed, and the reasons for this determination. The decision shall be served upon the applicant by personal service or by certified mail. The decision of the city administrator shall be final and conclusive upon the applicant. (Ord. No. 2010-02, § I, 1-11-10)

13.54 Business license.

It is unlawful for any person to open or operate a massage establishment without obtaining and maintaining in effect a city business license. (Ord. No. 2010-02, § I, 1-11-10)

13.55 Operating requirements for massage establishments.

Unless otherwise specified herein, all massage establishments shall comply with the following operating requirements:

(1) Exterior Signs. A recognizable and legible sign should be posted at the main entrance identifying the business as a massage establishment. Such sign need not be the primary sign for the business, but should clearly identify the establishment to foot and/or automobile traffic.

(2) Posting of Massage Establishment Permit. A copy of the massage establishment permit shall be posted in a conspicuous place in such a manner that it can easily be seen by persons entering the massage establishment.

(3) Designation of Managing Employee. If the holder of the permit will not personally manage the business during all hours of operation, he/she shall designate one (1) or more managing employees who shall be in charge of the operation of the business during his/her absence. If the managing employee(s) will personally give massages at the business, he/she must also obtain a massage practitioner permit.

(4) Display of Managing Employee Permit. If the holder of the permit has designated a managing employee, the managing employee permit issued to this employee shall be displayed in a conspicuous place on the premises of the massage establishment. Each managing employee permit holder shall be issued a photo identification badge from the city’s police department.

(5) Display of Massage Practitioner Permit. Every massage practitioner employed by the massage establishment shall hold a valid massage practitioner permit issued by the city’s police department or maintain valid state certification through CAMTC. Each massage practitioner that is permitted through the city shall be issued a photo identification badge from the city’s police department. The massage practitioner permit holder or CAMTC license holder shall display the identification badge on his/her person during business hours, or have the identification badge displayed in plain view.

(6) Dressing Room. Clients of the massage establishment shall be furnished with a dressing room, or private area for changing clothes if a dressing room is not available. Dressing rooms shall be used only by clients of the same sex at the same time.

(7) Payment/Tips. All massage services shall be paid for in the reception area, and all tips, if any, shall be paid for in the reception area. Massage establishments may utilize a system where tip envelopes are provided in the treatment rooms to be utilized and deposited by the client in the reception area.

(8) Alcohol Prohibited. No alcoholic beverages may be possessed or consumed on the premises of the massage establishment.

(9) No Condoms. No condoms shall be kept at the massage establishment unless they are the personal property of persons on site, and they are for the individual’s personal use.

(10) Standard of Dress. The holder of the massage establishment permit, managing employee, massage practitioners, and all other employees of the massage establishment shall remain fully clothed at all times while on the premises of the massage establishment. At a minimum, such clothing shall be made of a nontransparent material and shall not expose the buttocks, genital area or breasts of any employee or the holder of the permit. Bikini swimsuits and halter tops shall not be acceptable.

(11) Operating Hours. All massage establishments shall be closed for business by no later than 10:00 p.m. and shall open for business no earlier than 6:00 a.m. The city may set the specific operating hours for each massage establishment through the conditional use permit process. It shall be unlawful for any massage practitioner, or other employee of a massage establishment, to give or practice massage during the hours when the massage establishment is required to be closed.

(12) List of Services. A list of services available and the cost of such services shall be posted in an open public place within the premises, and they shall be described in readily understandable language. No owner, operator, manager, and/or responsible, managing employee shall permit, and no massage practitioner shall offer or perform, any service other than those posted.

(13) Records. Every massage establishment shall keep a written record of the date and hour of each service provided; the first and last name of each patron and the service received; and the first and last name of the massage practitioner administering the service. Said records shall be open to inspection to city officials, including but not limited to the police department and the city attorney’s office, which is charged with enforcement of this Article VI. These records may not be used by the massage establishment for any other purpose than as records of service provided, and unless otherwise required by law, they shall not be provided to third parties by the massage establishment. Said records shall be retained on the premises of the massage establishment business office for a period of not less than three (3) years. (Ord. No. 2010-02, § I, 1-11-10)

13.56 Sanitation requirements/condition of premises.

(a) Required Maintenance of Massage Establishments. All premises and facilities of the massage establishments shall be maintained in a clean and sanitary condition and shall be thoroughly cleaned after each day of operation. The premises and facilities shall meet applicable Code requirements of the city, including but not limited to those related to the safety of the structure, adequacy of the plumbing, heating, ventilating and waterproofing of rooms in which showers, water or steam baths are used.

(b) Linens. All massage establishments shall provide clean, laundered sheets, towels, and other linens in sufficient quantity for use by their clients. Such linens shall be laundered after each use and stored in a sanitary manner. No common use of linens or towels shall be permitted. Heavy white paper may be substituted for sheets on massage tables, so long as such paper is used only once for each client and is then discarded into a sanitary receptacle. Sanitary receptacles shall be provided for the storage of all soiled linens.

(c) Privacy Standards for Massage Rooms, Dressing Rooms and Rest Rooms. Dressing rooms and rest rooms may only be used by clients of the same sex at the same time. The massage establishment shall provide doors on all of its dressing rooms and massage rooms. Draw drapes, curtain enclosures or accordion-pleated enclosures are acceptable in lieu of doors for dressing and massage rooms.

(d) No Residential Use. No part of the massage establishment shall be used for residential or sleeping purposes. No cooking or food preparation will be allowed on the premises unless it is within an employee only designated kitchen area. (Ord. No. 2010-02, § I, 1-11-10)

13.57 Prohibited acts.

(a) Touching of Sexual and Genital Parts of Client During Massage. No holder of a massage establishment permit, managing employee, massage practitioner, or any other employee of a massage establishment shall place either his/her hand or hands upon, or touch with any part of his/her body, a sexual or genital part of any other person in the course of a massage, or massage a sexual or genital part of any other person. Sexual and genital parts shall include the genitals, pubic area, anus or perineum of any person or the vulva or breast of a female.

(b) Uncovering and Exposure of Sexual and Genital Parts Before, During or After Massage. No holder of a massage establishment permit, managing employee, massage practitioner, or other employee of a massage establishment shall uncover and expose the sexual or genital parts, as defined in subsection (a) of this section, of a client or themselves in the course of giving a massage, or before or after a massage. This subsection does not prohibit a client from turning over in the course of a massage, so long as the massage practitioner holds a towel, sheet, blanket or other drape over the client to protect his/her genital and sexual parts from exposure. (Ord. No. 2010-02, § I, 1-11-10)

13.58 Out-call massage services.

(a) Massage Establishment Permit Required for Out-Call Massage Services with Massage Facility or Principal Place of Business Located within City Limits. It is unlawful to establish or operate an out-call massage service which maintains or operates a facility at which massages are given or are made available to clients within city limits, or whose principal place of business is located within city limits, without obtaining and maintaining in effect a massage establishment permit from the police chief. Such out-call massage services must comply with all provisions of this article applicable to massage establishments.

(b) Massage Establishment Permit Not Required for Out-Call Massage Services with Massage Facility or Principal Place of Business Not Located within City Limits. A massage establishment permit shall not be required for any out-call massage service which does not operate or maintain a facility at which massages are given or made available to clients, or maintain a principal place of business within city limits.

(c) Massage Practitioner Permit or Valid State CAMTC Certification Required for Massage Practitioners Dispatched into City Limits by Out-of-Town Out-Call Massage Services. Any massage practitioner dispatched to give massages at locations within city limits from an out-call massage service located within or outside of city limits must obtain and maintain in effect a massage practitioner permit or valid state CAMTC certification pursuant to section 13.50(c) and must comply with all applicable provisions of this article. The provisions of section 13.55, except for subsection (10), and section 13.56 shall not apply to such out-call massage practitioners. Such massage practitioners shall maintain their certificates upon their persons, or within their immediate reach, at all times while performing massage in the city and shall display these upon the request of any city police officer.

(d) Special Procedures for Massage Practitioners Dispatched to Hotels or Motels in City Limits by Out-Call Massage Service. Massage practitioners may be dispatched to hotels or motels within the city limits by any out-call massage service only by the direct arrangement of the hotel or motel in conjunction with an incidental service regularly provided by the hotel or motel and only if the out-call massage service and massage practitioners have first obtained a permit(s) as required by this article. (Ord. No. 2010-02, § I, 1-11-10)

13.59 Transfer of massage establishment permit, managing employee permit, massage practitioner permit.

No massage establishment permit, managing employee permit or massage practitioner permit issued pursuant to this article shall be transferred or assigned in any manner, whether by operation of law or otherwise, from location to location or from person to person, except that any person possessing a valid massage practitioner permit shall be able to move from one (1) employer to another without filing a new application or paying a new fee, so long as the permit holder notifies the police chief of the change in his/her employment within five (5) days. (Ord. No. 2010-02, § I, 1-11-10)

13.60 Expiration and renewal of massage establishment permits, managing employee permits, and massage practitioner permit—Payment of renewal fee.

(a) All massage establishment permits, managing employee permits, and city issued massage practitioner permits shall expire on July 31st following the date of their issuance, unless revoked sooner by the police chief. Applications for renewal of a permit must be submitted to the police chief by no later than sixty (60) days before the expiration of such permit on a form provided by the police department, which shall require the applicant for renewal to update the information contained in his/her original application. The applicant must pay the city a nonrefundable renewal fee, in the amount established by resolution of the city council, at the time of filing his/her application for renewal. After investigating the application for renewal, the police chief may renew the massage establishment permit, managing employee permit or massage practitioner permit if the applicant continues to meet the standards for the issuance of a permit, and none of the grounds for denial of a permit set forth in section 13.53(b) exist. The police chief shall give the applicant for renewal written notice of his/her decision within sixty (60) days of the submission of the application for renewal to the police department by personal service of the decision to the applicant at his/her most recent home or business address on file with the police department or deposit of the decision in the United States mail by certified mail. If the application is denied, the notice shall state the specific grounds for the denial and that the applicant may appeal to the city administrator through the procedures set forth in section 13.53(d).

(b) If the holder of a massage establishment permit, managing employee permit or a massage practitioner permit does not file a timely application for renewal (sixty (60) days before expiration of the permit), he/she shall be required to file an application for a new permit pursuant to section 13.52 and to pay the applicable fees. (Ord. No. 2010-02, § I, 1-11-10)

13.61 Suspension and revocation of massage establishment permits, managing employee permits and massage practitioner permits.

(a) Grounds for Suspension or Revocation of Massage Establishment Permit or Managing Employee Permit. The police chief may suspend for a period of up to nine (9) months or revoke a massage establishment permit, or managing employee permit, according to procedures set forth in subsection (c) of this section, if there is probable cause to believe that:

(1) The permit holder has operated or managed the massage establishment in a manner which violates any provision of this article, or other applicable City Code provisions, state or federal law;

(2) The permit holder has committed any offense involving lewdness, indecent exposure or prostitution, or any other offense which would be grounds for denial of an application for a massage establishment permit or managing employee permit pursuant to section 13.53, or employees of the massage establishment have committed such offenses in the course of their employment and the permit holder has permitted them to do so or has failed to prevent them from doing so;

(3) Has made a false or misleading statement or omission of fact on his/her application for a massage establishment permit, managing employee permit or for renewal of the permit, or in any supplementary materials submitted with the application; or

(4) Is operating or managing the massage establishment in a manner which poses a danger to the health and safety of clients and/or the public, or without due regard for proper sanitation or hygiene.

(b) Grounds for Revocation or Suspension of Massage Practitioner Permit. The police chief may suspend for a period of up to nine (9) months or revoke a massage practitioner permit according to the procedures set forth in subsection (c) of this section, if there is probable cause to believe that:

(1) The massage practitioner has violated any provision of this article, or other applicable provisions of the City Code;

(2) The massage practitioner has committed any violation of law related to lewdness, indecent exposure, prostitution or any offense which would be grounds for denial of an application for a massage practitioner permit pursuant to section 13.53(b);

(3) The massage practitioner has made a false or misleading statement or omission of fact on his/her application for a permit or for renewal of a permit or in any supplementary materials submitted with such applications; or

(4) The massage practitioner has practiced massage in a manner which poses a danger to the health and safety of clients or the public, or without due regard for proper sanitation or hygiene;

(5) In the event that a massage practitioner with CAMTC certification violates any of the provisions within this article, the police chief and/or designee may notify the CAMTC board with notification of the violations. It will be up to the CAMTC to take action against a massage practitioner.

(c) Procedure for Revocation or Suspension of Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit.

(1) Notice to Holder of Permit. Whenever the police chief has probable cause to believe that grounds for the suspension or revocation of a massage establishment permit, managing employee permit or massage practitioner permit exist, he/she shall give the holder of the permit written notice of the date, time and place of a hearing to be held before the police chief on whether the permit should be suspended or revoked. The notice shall state the alleged grounds for the proposed revocation or suspension of the permit, and the notice shall be served on the holder of the permit personally at the most recent home or business address on file with the police department or by deposit of the notice in the United States mail by certified mail. Said notice shall also state that if no written request for a hearing is timely received, the applicant shall be deemed to waive its rights to a hearing.

(2) Hearing before Police Chief. The hearing on the revocation or suspension of the permit shall be held before the police chief or his/her designee no less than ten (10) days after the personal service of the notice to the holder of the permit at the most recent home or business address on file with the police department, or no less than ten (10) days after deposit of the notice, addressed to the holder of the permit or certificate, in the United States mail by certified mail. At the hearing, the holder of the permit and a representative of the city shall have the right to appear and to be represented by counsel, and to present evidence and arguments which are relevant to a determination of whether grounds for suspension or revocation of the permit or certificate exist.

(3) Decision of Police Chief. Within ten (10) days after the hearing, the police chief shall issue a written decision which states whether the permit is suspended or revoked, the length of any suspension, and the factual basis for the decision, and that the holder of the permit may appeal any suspension or revocation to the city administrator through the procedures set forth in subsection (c)(4) of this section. The decision of the police chief shall be served on the holder of the permit by personal service at the most recent home or business address on file with the police department or deposit of the notice, addressed to the holder of the permit, in the United States mail by certified mail. Said notice shall also state that if no written request for an appeal hearing is timely received, the applicant shall be deemed to waive its rights to an appeal hearing.

(4) Request for Appeal Hearing before City Administrator. The holder of the permit may appeal the decision of the police chief by filing a written request for an appeal hearing, which states the specific grounds on which the decision of the police chief is contested, with the city administrator’s office within ten (10) days of the personal service to the holder of the permit of the police chief’s decision at the most recent home or business address on file with the police department, or within ten (10) days of service of the decision by deposit of the notice, addressed to the holder of the permit, in the United States mail by certified mail.

(5) Appeal Hearing before City Administrator. Upon receipt of a timely request for an appeal hearing, the city administrator’s office shall notify the permit holder in writing of the date, time and place of the hearing before the city administrator, which shall not be less than ten (10) days after service of such written notice on the permit holder by personal service at the most recent home or business address on file with the police department, or ten (10) days after service of the notice by deposit of the notice, addressed to the holder of the permit or certificate, in the United States mail by certified mail. At the hearing, both the holder of the permit and the police chief shall have the right to appear and be represented by counsel and to present evidence and arguments which are relevant to the grounds for the appeal, as stated in the request for an appeal hearing. Within ten (10) days of the hearing, the city administrator shall issue a written decision that states whether the decision of the police chief is upheld, modified or reversed, and the length of any suspension. The decision shall be served on the holder of the permit by in-person delivery or by certified mail. The decision of the city administrator shall be final.

(6) Effective Date of Revocation or Suspension. Any suspension or revocation of a permit shall become effective immediately upon the personal service of the written decision of the police chief, or, in the event of an appeal, the city administrator, to the holder of the permit at the most recent home or business address on file with the city, or within five (5) days of the deposit of such decision addressed to the holder of the permit into the United States mail by certified mail.

(7) Surrender of Suspended or Revoked Massage Establishment Permit, Managing Employee Permit, or Massage Practitioner Permit to Police Chief. Upon a written decision by the police chief or, in the event of an appeal, by the city administrator, which suspends or revokes a massage establishment permit, managing employee permit, or massage practitioner permit, the permit shall immediately be surrendered to the police chief. In the case of a suspension, the police chief shall return the permit after the period of suspension has ended. (Ord. No. 2010-02, § I, 1-11-10)

13.62 Criminal penalties.

Except as specified in section 13.57, a violation of any provision of this article is a misdemeanor and may be prosecuted by the city in the name of the people of the State of California. The maximum fine or penalty for any violation of this article shall be one thousand dollars ($1,000), or a term of imprisonment in the county jail for a period not exceeding six (6) months, or both such fine and imprisonment. Except as otherwise provided, every such person shall be guilty of a separate offense for each and every day during any portion of which any violation is committed, continued or permitted by such person, and shall be punishable accordingly. (Ord. No. 2010-02, § I, 1-11-10)

13.63 Massage establishment operated in violation of this article deemed a public nuisance.

Any massage establishment which is opened, operated or maintained contrary to the provisions of this article shall be deemed a public nuisance. In addition to, or in lieu of, any other available legal remedies, the city attorney or district attorney of Santa Clara County may commence a civil legal action or actions in a court of competent jurisdiction to abate such nuisance and to enjoin the continued operation and maintenance of the massage establishment in a manner prohibited by this article. (Ord. No. 2010-02, § I, 1-11-10)

ARTICLE VII. MEDICAL MARIJUANA DISPENSARY AS A PROHIBITED USE

13.65 Medical marijuana dispensary as a prohibited use.

Repealed by Ord. 2016-01. (Ord. No. 2010-03, § I, 1-25-10)

ARTICLE VIII. TOBACCO RETAILER PERMIT

13.66 Definitions.

The following words and phrases, whenever used in this article, shall be construed as defined in this section:

“Arm’s length transaction” means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two (2) informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this article is not an arm’s length transaction.

“City” means the City of Gilroy and each of its officers and employees designated to enforce or administer the provisions of this article.

“Electronic smoking device” means an electronic and/or battery-operated device, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances. “Electronic smoking device” includes any such electronic smoking device, whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, or any other product name or descriptor. “Electronic smoking device” does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease.

“Electronic smoking device paraphernalia” means cartridges, cartomizers, e-liquid, smoke juice, tips, atomizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic smoking devices.

“Permittee” means a tobacco retailer or their authorized representative and/or employee with a valid tobacco retailer’s permit.

“Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

“Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person can or does have or share ultimate control over the day-to-day operations of a business.

“Self-service display” means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.

“Smoking” means possessing a lighted tobacco product, lighted tobacco paraphernalia, or any other lighted weed or plant (including a lighted pipe, cigar, hookah pipe, or cigarette of any kind) and means the lighting of a tobacco product, tobacco paraphernalia, or any other weed or plant (including a pipe, cigar, hookah pipe, or cigarette of any kind).

“Smoking paraphernalia” means tobacco paraphernalia, electronic smoking devices, and electronic smoking device paraphernalia.

“Tobacco paraphernalia” means cigarette papers or wrappers, pipes, holders of smoking materials of all types, cigarette rolling machines, and any other item designed for the smoking, preparation, storing, or consumption of tobacco products.

“Tobacco product” means any substance containing tobacco leaf, including but not limited to cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, snus, bidis, or any other preparation of tobacco; and any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human body, but does not include any cessation product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

“Tobacco retailer” means any person who sells, offers for sale, or does or offers to exchange for any form of consideration tobacco, tobacco products or tobacco paraphernalia. “Tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco, tobacco products, or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange. (Ord. No. 2014-14, § 1, 11-17-14)

13.67 Purpose.

This article is intended to set forth a local permit process for tobacco retailers to ensure that retailers comply with tobacco control laws and city business standards to protect the public health, safety and welfare. Individuals who wish to act as a tobacco retailer within the city must first obtain and maintain a valid tobacco retailer’s permit pursuant to these provisions for each location at which that activity is to occur. It is the responsibility of each proprietor to be informed of all laws applicable to tobacco retailing, including those laws affecting the issuance of a tobacco retailer’s permit. (Ord. No. 2014-14, § 1, 11-17-14)

13.68 General regulations.

Every person within the city who operates as a tobacco retailer is required to obtain and maintain a valid tobacco retailer’s permit. Every person within the city who operates as a tobacco retailer with a valid tobacco retailer’s permit shall comply with each of the following conditions:

(a) Location. Tobacco retailing activities shall be conducted at a fixed location and within the enclosed area of the tenant space completely accessible to the general public during the hours of business operation;

(b) Display of Permit. Each tobacco retailer permit shall be prominently displayed in a publicly visible location at the permitted location;

(c) Minimum Age for Persons Selling Tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing;

(d) Minimum Age for the Purchase of Tobacco. No person engaged in tobacco retailing shall sell or transfer tobacco products or tobacco paraphernalia to a person whose legal age is under minimum age established by state law for the purchase or possession of tobacco products;

(e) Positive Identification Required. Persons engaged in tobacco retailing may not sell or transfer a tobacco product or tobacco paraphernalia to another person who appears to be under the age of twenty-seven (27) years without first examining the identification of the recipient to confirm that the recipient is at least the minimum age under state law to purchase and possess a tobacco product or tobacco paraphernalia;

(f) On-Site Smoking Prohibited. Persons engaged in tobacco retailing shall not permit smoking inside or in any adjacent outdoor area owned, leased, or operated in the permitted premises. In addition, no person engaged in tobacco retailing shall permit smoking within twenty (20) feet of any doorway, window, opening, or other vent into the permitted premises. Further, no person engaged in tobacco retailing shall permit the presence or placement of usable ash receptacles within the permitted premises, such as ashtrays or ash cans;

(g) Self-Service Displays Prohibited. Tobacco retailing by means of a self-service display is prohibited;

(h) Permit Nontransferable. A tobacco retailer’s permit may not be transferred from one (1) person to another or from one (1) location to another. A new tobacco retailer’s permit is required whenever the proprietor(s) of a tobacco retailing location change; and

(i) Tobacco retailing is prohibited near schools as follows:

(1) Except as provided in this section, no new tobacco retailer permit may be issued to authorize tobacco retailing within one thousand (1,000) feet of a school as measured by a straight line from the nearest point of property line of the parcel on which the school is located to the nearest point of the property line on which the applicant’s business is located. For purposes of this section, “school” means a private or public elementary, middle, junior high or high school.

(2) A tobacco retailer operating lawfully on the effective date of the ordinance codified in this article is exempt from this requirement.

(3) The sale to another individual, through an arm’s length transaction, of a tobacco retail business operating lawfully on the effective date of the ordinance codified in this article is exempt from this requirement. The new owner of such business is required to apply for and obtain a new tobacco retailer’s permit. (Ord. No. 2014-14, § 1, 11-17-14)

13.69 Application procedure.

All applications shall be submitted on a form supplied by the City of Gilroy finance department and shall contain all of the following information:

(a) Application Materials.

(1) The name, address, and telephone number of each proprietor of the business seeking a permit;

(2) The business name, address, and telephone number of the single fixed location for which a permit is sought;

(3) A single name and mailing address authorized by each proprietor to receive all communications and notices (the “authorized address”) required by, authorized by, or convenient to the enforcement of this article. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subsection (a)(2) of this section;

(4) Proof that the location for which a tobacco retailer’s permit is sought has been issued a valid state tobacco retailer’s permit by the California Board of Equalization;

(5) Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this article and, if so, the dates and locations of all such violations within the previous five (5) years;

(6) The application shall be signed by each proprietor or an authorized agent thereof;

(7) Such other information as the city deems necessary for the administration or enforcement of this article as specified on the application form required by this section; and

(8) Proof of annual employee training, and proof of new employee training to the satisfaction of the finance director.

(b) A permitted tobacco retailer shall inform the city in writing of any change in the information submitted on an application for a tobacco retailer’s permit within ten (10) business days of a change.

(c) All information specified in an application pursuant to this section shall be subject to disclosure under the California Public Records Act (California Government Code Section 6250 et seq.) or any other applicable law, subject to the law’s exemptions. (Ord. No. 2014-14, § 1, 11-17-14)

13.70 Issuance of permit.

Upon the receipt of a complete application for a tobacco retailer’s permit and the permit fee required by this article, the city shall issue a permit, except as otherwise provided in this article. The term of a tobacco retailer permit is one (1) year and may be renewed annually. A permit will not be issued if substantial evidence demonstrates that one (1) or more of the following exists:

(a) The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information shall be a violation of this article;

(b) The application seeks authorization for tobacco retailing at a location for which a tobacco retailer permit has been denied pursuant to this article. However, this subsection shall not constitute a basis for denial of a permit if the applicant provides the city with documentation demonstrating by clear and convincing evidence that the applicant has acquired or is acquiring the location or business in an arm’s length transaction, and is not associated with the previous applicant in any way;

(c) The application seeks authorization for tobacco retailing for a proprietor to whom this article prohibits a permit to be issued; or

(d) The application seeks authorization for tobacco retailing that is prohibited pursuant to this article (e.g., mobile vending), that is unlawful pursuant to the Gilroy Municipal Code, or that is unlawful pursuant to any other law. (Ord. No. 2014-14, § 1, 11-17-14)

13.71 Permit renewal and expiration.

(a) Renewal of Permit. Each tobacco retailer shall apply for a renewal of the tobacco retailer’s permit and submit the permit fee no later than thirty (30) days prior to expiration of the term. A tobacco retailer’s permit is invalid if the appropriate fee has not been paid in full or if the term of the permit has expired.

(b) Expiration of Permit. A tobacco retailer’s permit not timely renewed shall expire at the end of its term. To renew a permit not timely renewed pursuant to subsection (a) of this section, the proprietor must:

(1) Submit the permit fee and application renewal form; and

(2) Submit a signed affidavit affirming that the proprietor:

a. Has not sold and will not sell any tobacco product or tobacco paraphernalia after the permit expiration date and before the permit is renewed; or

b. Has waited the appropriate ineligibility period established for tobacco retailing without a permit, as set forth in section 13.82, before seeking renewal of the permit. (Ord. No. 2014-14, § 1, 11-17-14)

13.72 Fee for permit.

(a) The fee to issue or to renew a tobacco retailer’s permit shall be established from time to time by resolution of the city council. The fee shall be calculated so as to recover any amount up to the cost of administration of this article, including, for example, issuing a permit and administering the permit program, but shall not exceed the cost of the regulatory program, which includes enforcement and training authorized by this article. Fees are nonrefundable except as may be required by law.

(b) All fees and civil penalties collected pursuant to this article shall be maintained in a separate city account to be used to implement this article, such as enforcement or training purposes. (Ord. No. 2014-14, § 1, 11-17-14)

13.73 Permit conveys a limited, conditional privilege.

(a) Nothing in this article shall be construed to grant any person obtaining and maintaining a tobacco retailer’s permit any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit.

(b) Nothing in this article shall be construed to render inapplicable, supersede, or apply in lieu of any other provision of applicable law, including but not limited to any provision of this Code limitation, the Gilroy Municipal Code, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. For example, obtaining a tobacco retailer permit does not make the retailer a “retail or wholesale tobacco shop” for the purposes of California Labor Code Section 6404.5. (Ord. No. 2014-14, § 1, 11-17-14)

13.74 Compliance monitoring.

(a) Compliance with this article shall be monitored by the city. Any peace officer may enforce the penal provisions of this article. The city may designate any number of additional persons to monitor compliance with this article.

(b) Inspections may be conducted so as to allow the city to determine, at a minimum, if a tobacco retailer is conducting business in a manner that complies with laws regulating youth access to tobacco products and paraphernalia.

(c) The city shall not enforce any law establishing a minimum age for tobacco purchasers or possession against a purchaser of tobacco that otherwise might be in violation of such law because of the person’s age if the potential violation occurs when:

(1) The purchaser (hereinafter referred to as “youth decoy”) is participating in a compliance check supervised by a peace officer or a code enforcement official of the city;

(2) The youth decoy is acting as an agent of a person designated by the city to monitor compliance with this article; or

(3) The youth decoy is participating in a compliance check funded in part, either directly or indirectly through subcontracting, by the Santa Clara County department of health or the California Department of Health Services. (Ord. No. 2014-14, § 1, 11-17-14)

13.75 Tobacco retailing without a permit.

(a) In addition to any other penalty authorized by law, if a court of competent jurisdiction determines, or the city finds based on a preponderance of evidence, after notice and an opportunity to be heard consistent with section 13.81 et seq., that any person has engaged in tobacco retailing at a location without a valid tobacco retailer’s permit, either directly or through the person’s agents or employees, the person shall be ineligible to apply for, or to be issued, a tobacco retailing permit as follows:

(1) After a first violation of this section at a location within any sixty (60) month period, no tobacco retailer permit shall be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until thirty (30) days have passed from the date of the violation;

(2) After a second violation of this section at a location within any sixty (60) month period, no tobacco retailer permit shall be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until one (1) calendar year has passed from the date of the second violation;

(3) After a third or subsequent violation of this section at a location within any sixty (60) month period, no new permit may be issued for the person or the location (unless ownership of the business at the location has been transferred in an arm’s length transaction), until five (5) calendar years have passed from the date of the most recent violation.

(b) Notwithstanding any other provision of this article, prior violations at a location shall continue to be counted against a location and permit ineligibility periods shall continue to apply to a location unless:

(1) The location has been fully transferred to a new proprietor(s); and

(2) The new proprietor(s) provides the city with clear and convincing evidence that the new proprietor(s) has acquired or is acquiring the location in an arm’s length transaction, and is not associated with the prior proprietor(s) in any way.

(c) Tobacco products and tobacco paraphernalia offered for sale or exchange in violation of this section are subject to seizure by the city or any peace officer and shall be forfeited after the person, the person’s agents or employees, or any other owner of the tobacco products and tobacco paraphernalia seized is given reasonable notice and an opportunity, consistent with section 13.80, to demonstrate that the tobacco products and tobacco paraphernalia were not offered for sale or exchange in violation of this article. The decision by the city may be appealed pursuant to section 13.81. Forfeited tobacco products and tobacco paraphernalia may be destroyed after all internal appeals have been exhausted and the time in which to seek judicial review pursuant to California Code of Civil Procedure Section 1094.6 or other applicable law has expired without the filing of lawsuit or, if such a suit is filed, after judgment in that suit becomes final.

(d) For the purposes of the civil remedies provided in this article:

(1) Each day on which a tobacco product or tobacco paraphernalia is offered for sale in violation of this article constitutes a separate violation; or

(2) Each individual retail tobacco product and each individual retail item of tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this article constitutes a separate violation. (Ord. No. 2014-14, § 1, 11-17-14)

13.76 False and misleading advertising prohibited.

A tobacco retailer without a valid tobacco retailer permit or whose permit has been revoked shall be unable to:

(a) Keep tobacco products and tobacco paraphernalia within public view.

(b) Display any advertisement relating to tobacco products or tobacco paraphernalia that promotes the sale or distribution of such products from the tobacco retailer’s location or that could lead a reasonable consumer to believe that such products can be obtained at that location. (Ord. No. 2014-14, § 1, 11-17-14)

13.77 Penalties and enforcement.

In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a permit has been issued, it shall be a violation of this article for a permittee, or any of the permittee’s agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing.

(a) The remedies provided by this article are cumulative and in addition to any other remedies available at law or in equity;

(b) Whenever evidence of a violation of this article is obtained in any part through the participation of a person under the age of eighteen (18) years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this article and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented;

(c) Violations of this article are subject to a civil action brought by the city attorney, punishable by a civil penalty not less than one thousand dollars ($1,000) and not exceeding five thousand dollars ($5,000) per violation;

(d) Violations of this article may, in the discretion of the city attorney, be prosecuted as misdemeanors;

(e) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this article shall also constitute a violation of this article;

(f) Any tobacco retailer which is opened, operated or maintained contrary to the provisions of this article shall be deemed a public nuisance. In addition to, or in lieu of, any other available legal remedies, the city attorney may commence a civil legal action or actions in a court of competent jurisdiction to abate such nuisance and to enjoin the continued operation and maintenance of the tobacco retailer establishment in a manner prohibited by this article;

(g) In addition to other remedies provided by this article or by other laws, any violation of this article may be remedied by a civil action brought by the city attorney, including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. (Ord. No. 2014-14, § 1, 11-17-14)

13.78 Civil penalties, suspension or revocation of permit.

A permit issued contrary to this article, contrary to any other law, or on the basis of false or misleading information supplied by a proprietor may be suspended or revoked pursuant to section 13.80. Nothing in this article shall be construed to vest in any person obtaining and maintaining a tobacco retailer’s permit any status or right to act as a tobacco retailer in contravention of any provision of law.

In addition to any other penalty authorized by this article or by other laws, civil penalties shall be imposed as set forth below. In addition, a tobacco retailer’s permit may be suspended and/or revoked as set forth below if any court of competent jurisdiction determines, or the city finds based on a preponderance of the evidence, after the permittee is afforded notice and an opportunity to be heard pursuant to section 13.80, that the permittee, or any of the permittee’s agents or employees, has violated section 13.68(d):

(a) After a first violation of section 13.68(d) at a location, a civil penalty of one thousand dollars ($1,000) shall be imposed. In addition, the city may suspend the tobacco retailer permit for a period no less than thirty (30) calendar days;

(b) After a second violation of section 13.68(d) at a location within a sixty (60) month period, a civil penalty of two thousand five hundred dollars ($2,500) shall be imposed. In addition, the city may suspend the tobacco retailer permit for a period no less than sixty (60) calendar days;

(c) After a third violation of section 13.68(d) at a location within a sixty (60) month period, a civil penalty of five thousand dollars ($5,000) shall be imposed. In addition, the city may revoke the tobacco retailer permit. (Ord. No. 2014-14, § 1, 11-17-14)

13.79 Revocation of a wrongly issued permit.

A tobacco retailer’s permit shall be revoked if the city finds, after the permittee is afforded notice and an opportunity to be heard consistent with the procedure set forth in section 13.81 et seq., that one (1) or more of the bases for denial of a permit under section 13.70 existed at the time application was made or at any time before the permit issued. The decision by the city to revoke shall be the final decision. Such a revocation shall be without prejudice to the filing of a new permit application. (Ord. No. 2014-14, § 1, 11-17-14)

13.80 Suspension or revocation of a tobacco retailer permit, or forfeiture of seized tobacco and tobacco paraphernalia process.

The city may suspend or revoke a tobacco retailer’s permit pursuant to section 13.78 or 13.79 or deem seized tobacco and/or tobacco paraphernalia as forfeit pursuant to section 13.75(c). Before the city suspends or revokes a permit or deems seized tobacco and/or tobacco paraphernalia as forfeit, the city shall provide written notice of the suspension or revocation of a permit or the pending forfeiture by personal delivery or first class certified United States mail. The notice shall provide for the suspension or revocation of the permit or forfeiture of the seized items fifteen (15) calendar days after mailing or personal delivery of the notice unless the permittee requests a hearing. The notice shall instruct the permittee on how to file a request for a hearing consistent with section 13.81 et seq. The notice shall be addressed to the permittee at the address provided in the permittee’s application, or other more reliable address if known to the city. If after the passage of fifteen (15) calendar days from the mailing or personal delivery of the notice, the permittee has not requested a hearing, the suspension, revocation, or forfeiture shall become final. (Ord. No. 2014-14, § 1, 11-17-14)

13.81 Hearing.

(a) The permittee may request a hearing before the city administrator on a decision of the city to suspend and/or revoke a tobacco retailer permit or deem seized tobacco and tobacco paraphernalia. The request must be filed with the city clerk within fifteen (15) calendar days following the mailing or personal delivery of written notice of the suspension and/or revocation.

(b) The city clerk shall schedule an administrative hearing with the city administrator or his or her designee. The administrative hearing shall be held pursuant to the city’s administrative hearing policy as set forth in Resolution No. 97-17. (Ord. No. 2014-14, § 1, 11-17-14)

13.82 New permit after revocation.

(a) After first revocation at a location within any sixty (60) month period, no new permit may be issued for the location until one (1) calendar year has passed from the date of revocation.

(b) After second or more revocations at a location within any sixty (60) month period, no new permit may be issued for the location until five (5) calendar years have passed from the date of the most recent revocation. (Ord. No. 2014-14, § 1, 11-17-14)

13.83 Nondiscrimination.

No person shall discharge, refuse to hire, or in any manner discriminate against any employee or applicant for employment because such employee or applicant exercises any rights afforded by this article. (Ord. No. 2014-14, § 1, 11-17-14)


1

For state law as to authority of city to license for revenue and regulation purposes, see Gov. C., § 37101. As to authority of city to license in exercise of police power and for purpose of regulations, see B. & P.C., § 16000. As to licensing by cities generally, see B. & P.C., §§ 16000 to 16003.

    As to taxation generally, see Ch. 22 of this Code.