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Chapter 4-28
MASSAGE ESTABLISHMENTS

Sections:

4-28.010    Findings and purpose.

4-28.020    Definitions.

4-28.030    Operator’s permit required.

4-28.040    Application for operator’s permit.

4-28.050    Operator’s permit issuance and denial.

4-28.060    Massage technician permit required.

4-28.070    Application for massage technician permit.

4-28.080    Massage technician permit issuance and denial.

4-28.090    Changes of business.

4-28.100    Exemption—Existing permittees.

4-28.110    Transfer and duration of permits.

4-28.120    Suspension, revocation, denial and appeal.

4-28.130    Violation—Penalty.

4-28.010 Findings and purpose.

The City Council finds and declares as follows:

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

B.    The city is authorized, by virtue of the State Constitution, and Section 51031 of the Government Code, to regulate massage establishments by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of a massage establishment.

C.    There is a significant risk of injury to massage clients by improperly trained and/or educated massage technicians and this chapter provides reasonable safeguards against injury and economic loss.

D.    Massage establishments present an opportunity for acts of prostitution and the use and sale of illegal drugs. Such illegal activity has been documented by police reports in cities in Orange County, such as Newport Beach, San Juan Capistrano, and Costa Mesa, which have several massage establishments. The establishment of reasonable standards for issuance of permits and restrictions on operations would serve to reduce the risk of illegal activity.

E.    The restrictions and requirements contained in this chapter reduce the burdens on the city’s police personnel and permit the deployment of the police personnel such that more serious crimes may be prevented and more important laws be enforced.

F.    The regulations and restrictions contained in this chapter tend to discourage massage establishments from degenerating into houses of prostitution or sites for illegal drug use and sales; the means utilized in this chapter bear a reasonable and rational relationship to the goals sought to be achieved.

(Prior code § 6-05.005)

4-28.020 Definitions.

Unless the particular provision of the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this chapter.

“Chief of Police” means the Chief of Police Services of the city of Laguna Hills or his or her designated representative.

“City Council” means the City Council of the city of Laguna Hills.

“City Manager” means the City Manager of the city of Laguna Hills or his or her designated representative.

“Conviction” and “convicted” means a plea or verdict of guilty or a conviction following a plea of nolo contendere.

“Manager” means the person(s) designated by the operator of the massage establishment to act as the representative and agent of the operator in managing day-to-day operations with the same liabilities and responsibilities. Evidence of management includes, but is not limited to, evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules, or purchase supplies. A manager may also be an owner. A manager must meet the standards and qualifications for a massage technician permit to qualify as a manager and obtain a massage technician permit.

“Massage” means any method of treating the external parts of the body for remedial, hygienic, relation, or any other reason or purpose, whether by means of pressure on, friction against or stroking, kneading, tapping, pounding, vibrating, rubbing, or other manner of touching external parts of the body with the hands, or with the aid of any mechanical or electrical apparatus or appliance with or without supplementary aids such as rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment, or other similar preparations commonly used in this practice.

“Massage establishment” means any business conducted within the city of Laguna Hills where any person, firm, association, partnership, corporation, or combination of individuals engages in, conducts, carries on, or permits to be engaged in, conducted or carried on for money or any other consideration, administers to another person a massage, bath, or health treatment involving massages or baths.

“Massage technician” means any person who administers to another person a massage within a massage establishment in exchange for anything of any value whatsoever. The terms “massage therapist” and “massage practitioner” are included within this definition for purposes of this chapter.

“National Certification Board for Therapeutic Massage and Bodywork” or “NCBTMB” means The National Certification Board for Therapeutic Massage and Bodywork, which is a not-for-profit organization, accredited by the National Commission for Certifying Agencies having its principal offices located at 8201 Greensboro Drive, Suite 300, McLean, VA 22102.

“National Certification Examination in Therapeutic Massage and Bodywork” or “NCE” means the National Certification Examination for Therapeutic Massage and Bodywork developed and administered by the NCBTMB.

“Operator” means all persons who have an ownership interest in the massage establishment and are responsible for its day-to-day operations.

“Operator’s permit” means the permit required pursuant to the provisions of this chapter to operate or manage a massage establishment.

“Person” means any individual, corporation, partnership, association, or other group or combination of individuals acting as an entity.

“Police Department” means the Police Department of the city of Laguna Hills.

“Recognized school of massage” means any school or institution of learning which teaches, through state certified instructors, the theory, ethics, practice, profession, or work of massage, which school or institution complies with the California Education Code, including but not limited to Section 94900, 94905, or 94915, and which requires a resident course of study before the student shall be furnished with a diploma or certificate of graduation. Schools offering a correspondence course not requiring actual attendance shall not be deemed a recognized school.

For purposes of this chapter the term “employee” includes independent contractors. (Ord. 2003-8 § 2: prior code § 6-05.010)

4-28.030 Operator’s permit required.

A.    No person shall operate a massage establishment within the city without first obtaining an operator’s permit pursuant to this chapter, and complying with Title 9 of this code.

B.    No operator permit shall be issued to a person pursuant to this chapter unless: (i) the massage establishment is located and conducted on the premises of a fixed location within the city; (ii) the massage establishment is located and conducted within a zoning district that permits such uses; and (iii) an occupancy permit has been issued by the city for the massage establishment.

(Ord. 2003-2 § 2: prior code § 6-05.020)

4-28.040 Application for operator’s permit.

A.    Any person desiring an operator’s permit for a massage establishment business shall file a written application on the required form with the Police Department, who shall conduct an investigation. The application is accompanied by an appropriate filing fee as established by resolution of the County of Orange Board of Supervisors, which represents the County Sheriff’s costs to conduct the investigation and process the application. The city may also establish by resolution of the City Council an appropriate filing fee, which represents the city’s costs to conduct the investigation and process the application. The application is completed and signed by the operator of the proposed massage establishment, if a sole proprietorship; one general partner, if the operator is a partnership; one officer or one director, if the operator is a corporation; and one participant, if the operator is a joint venture. The application for permit does not authorize operation of a massage establishment unless and until such permit has been properly granted. The application shall contain or be accompanied by the following:

1.    The type of ownership of the business, i.e., whether by individual, partnership, corporation, or otherwise. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of that corporation. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners, including limited partners. If it is a limited partnership, it shall furnish a copy of its certificate of limited partnership filed with the Secretary of State. If one or more of the partners is a corporation, the provision of this subsection pertaining to corporations shall apply. The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer. Such designated persons shall complete and sign all application forms required for an individual applicant under this chapter, but only one application fee shall be charged.

2.    The precise name under which the massage establishment is to be conducted.

3.    The complete address and telephone numbers of the massage establishment.

4.    A complete current list of the names and residence addresses of all proposed massage technicians and employees in the massage establishment and the name and residence addresses of the manager or managing employee proposed to be principally in charge of the operation of the massage establishment.

5.    A description of any other business operated on the same premises, or within the city, or within the state, which is owned or operated by the applicant.

6.    The following personal information concerning the applicant:

a.    Full complete name and all aliases used by the applicant.

b.    Current address and all previous residential addresses for eight years immediately preceding prior to the present address of the applicant.

c.    Acceptable proof that the applicant is at least eighteen (18) years of age.

d.    Height, weight, color of hair, eyes, and sex.

e.    Two front faced portrait photographs at least two inches by two inches in size.

f.    The applicant’s complete business, occupation, and employment history for eight years preceding the date of application, including, but not limited to, the massage or similar business history and experience of the applicant.

g.    The complete massage permit history of the application; whether such person has ever had any permit or license issued by any agency, board, city, county, territory, or state; the date of issuance of such a permit or license, whether the permit or license was denied, revoked, suspended or refused to be renewed; or of a vocational or professional license or permit was denied, revoked, suspended or refused to be renewed; and the reason therefore.

h.    All criminal convictions, including pleas of nolo contendre, within the last ten years including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefor.

i.    A complete set of fingerprints taken by the Police Department.

7.    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 or her property.

8.    Authorization for the city, its agents and employees to seek verification of the information contained in the application.

9.    Such other identification and information as the Chief of Police may require in order to discover the truth of the matters herein specified and as required to be set forth in the application.

10.    A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct.

11.    If, during the term of a permit, the permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the Police Department of such change within ten business days thereafter, in writing.

(Ord. 2003-8 § 3; Ord. 2003-2 § 3; prior code § 6-05.030)

4-28.050 Operator’s permit issuance and denial.

A.    Upon receipt of a complete application for a permit the Chief of Police shall conduct an investigation to ascertain whether such permit should be issued as requested. The Chief shall report his or her findings to the City Manager, with a recommendation for action on the permit. The City Manager shall, within sixty (60) days of receipt of a complete application, approve, conditionally approve, or deny the application. The sixty (60) day period may be extended by the City Manager at the request of the Chief of Police for up to thirty (30) additional days, to complete the investigation. The City Manager shall issue such permit as requested, unless he or she makes any of the following findings:

1.    The applicant, if an individual, or any of the officers or directors of the corporation, if the applicant is a corporation; or a partner, if the applicant is a partnership, or any person directly engaged or employed in the massage establishment, has within eight years preceding the date of the application:

a.    Been convicted of a violation of California Penal Code sections 266h, 266i, 314, 315, 316, 318, Subsections (a), or (b) of Penal Code Section 647 or any other provision of law pursuant to which a person is required to register under the provisions of Penal Code Section 290, or when the prosecution accepted a plea of guilty or nolo contendre to a charge of a violation of California Penal Code Section 415 or any lesser included or lesser related offense, in satisfaction of or as a substitute for, any of the previously listed crimes.

b.    Been convicted of a violation of Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution, or possession of a controlled substance specified in Health and Safety Code Section 11054, 11055, 11056, 11057 or 11058.

c.    Been convicted of any offense in any other state which is the equivalent of any of the above-mentioned offenses.

d.    Been engaged in conduct in another jurisdiction which, if it had occurred within the city, would constitute grounds for denial, suspension, or revocation under this chapter.

e.    Been subjected to a permanent injunction against the conducting or maintaining of nuisance pursuant to Sections 11225 through 11235 of the California Penal Code, or any similar provisions of law in a jurisdiction outside the state.

f.    Engaged in conduct which would constitute an offense as described in subsection (A)(1)(a) of this section.

g.    Committed an act in another jurisdiction, which if committed in this state would have been a violation of law or, which, if done by a permittee under this chapter, would be grounds for denial, suspension or revocation of the permit.

h.    Been convicted of an act involving dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are related to the qualifications, functions, or duties of the operator.

i.    The applicant has had a massage operator or massage technician permit or other similar license or permit denied, suspended, revoked, or refused to be renewed for cause by a licensing authority or by any city, county, or state.

2.    The applicant has made a false, misleading, or fraudulent statement or omission of fact to the city in the permit application process.

3.    The application does not contain all of the information required by Section 4-28.040 of this chapter.

4.    The massage establishment as proposed by the applicant does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards.

5.    If the application is denied for failure to comply with subsections (A)(2) or (A)(3) of this section, the applicant may not reapply for a period of six months from the date the application was denied.

B.    All operators and managers shall comply with the following conditions and any other conditions specified by the Chief of Police:

1.    Except to the extent required, in writing, by a state licensed medical practitioner, no massage technician, massage technician aide, or employee shall massage the genital, buttock, or anal area of any patron or the breasts of any female patron, nor shall any operator or manager of a massage establishment allow or permit such massage. No massage operator or designated manager while performing any task or service associated with the massage business, shall be present in any room with another person unless the person’s genitals, buttocks, anus, or, in the case of female, her breast(s), are fully covered.

2.    No person granted a permit pursuant to this chapter shall use any name or conduct business under any designation not specified in his or her permit.

3.    All massage establishments required to be licensed under this chapter shall have a manager on the premises at all times the massage establishment is open. The operator of each massage establishment shall file a statement with the Chief of Police designating the person or persons with power to act as a manager. The operator and/or on-duty manager shall post, on a daily basis, the name of each on-duty manager and each on-duty technician in a conspicuous public place in the lobby of the massage establishment. The operator, or the manager in the operator’s absence, shall be responsible for ensuring compliance with this chapter. All operators and/or on-duty managers must be able to communicate effectively with city regulatory officials.

4.    No licensed establishment shall be open for business without having at least one massage technician holding a current valid permit of the specific establishment on the premises, and on duty, at all times when said establishment is open.

5.    The operator and/or designated manager(s) shall ensure the massage technician permit for each on-duty massage technician is displayed in a conspicuously public place in the lobby and that each massage technician is wearing or has their massage technician permit on their person at all times when in the massage establishment. Such identification shall be provided to city regulatory officials upon demand.

6.    An operator and/or on-duty manager shall be responsible for the conduct of all employees while the employees are on the licensed premises. Any act or omission of any employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator for purposes of determining whether the operator’s license shall be revoked, suspended, denied, or renewed.

7.    No operator or manager shall employ any person as a massage technician who does not have a valid massage technician permit issued pursuant to this chapter. Every operator or manager shall report to the Chief of Police any change of employees, whether by new or renewed employment, discharge or termination, on the form and in the manner required by the Chief of Police. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within five days of the hire or termination. The operator shall deliver the permit and photo identification card of any massage technician no longer employed by the operator to the Chief of Police within five days.

8.    All persons employed in the massage establishment shall be fully clothed at all times. Clothing shall be of a fully opaque, nontransparent material and shall provide complete covering from mid-thigh to three inches below the collar bone.

9.    The operator and/or on duty manager shall maintain a register of all employees, showing the name, nicknames, and aliases used by the employee, home address, age, birth date, sex, height, weight, color of hair and eyes, phone numbers, social security number, date of employment and termination, if any, and duties of each employee. The above information on each employee shall be maintained in the register on the premises for a period of two years following termination. The operator and/or manager on duty shall make the register of employees available immediately for inspection by police upon demand of a representative of the Police Department at all reasonable times.

10.    The operator shall comply with all provisions of this chapter and any applicable provisions of the Laguna Hills Municipal Code.

(Ord. 2003-2 § 4; prior code § 6-05.040)

4-28.060 Massage technician permit required.

No person shall perform or administer a massage, or advertise to provide massage services in the city, unless such person has in effect a valid massage technician permit issued pursuant to this chapter. (Prior code § 6-05.050)

4-28.070 Application for massage technician permit.

A.    Any person desiring a massage technician permit shall file a written application on the required form with the Police Department who shall conduct an investigation. The application is accompanied by an appropriate filing fee as described in Section 4-28.040(A) of this Code. The application contains the following information:

1.    A statement of the exact massage establishment location at which the applicant will be working as a massage technician, including the full street address and all telephone numbers associated with said fixed location, and the name and address of the massage establishment.

2.    The following personal information concerning the applicant:

a.    Full complete name, and all aliases used by the applicant, along with complete residence address and telephone;

b.    All previous residential addresses for eight years immediately preceding the present address of the applicant;

c.    Acceptable written proof that the applicant is at least eighteen (18) years of age;

d.    Height, weight, color of hair and eyes, and sex;

e.    Two front faced portrait photographs at least two inches by two inches in size;

f.    The business, occupation, and employment history of the applicant for the eight years immediately preceding the date of the application;

g.    The complete permit history of the applicant and whether such person has ever had any license or permit issued by any agency, board, city, or other jurisdiction denied, revoked, suspended, or refused to be renewed and the reasons therefore.

3.    All criminal convictions, including pleas of nolo contendre, within the last ten years, including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefor.

4.    A complete set of fingerprints taken by the Police Department.

5.    Such other information and identification as the Chief of Police may require in order to discover the truth of the matters herein specified and as required to be set forth in the application.

6.    Authorization for the city, its agents and employees to seek verification of the information contained in the application.

7.    A statement in writing, and dated, by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct.

8.    If during the term of a permit, a permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the Police Department of such change within ten business days thereafter, in writing.

B.    Each applicant must furnish the following information:

1.    An original or certified copy of a diploma or certificate and certified transcript of graduation for completion of five hundred (500) hours of instruction from an approved or recognized school of massage, wherein the method, practice, profession, theory, ethics, anatomical and physiological knowledge and practice of a massage technician is taught by state certified instructors. The applicant must also supply a course description, an outline of material covered, and a letter to the city from the school administrator verifying completion.

a.    The Chief of Police may consider an applicant’s study of massage completed outside the state if proof of completion from a formalized course of study in massage practice, anatomy, and/or physiology is provided with the application. Proof of completion includes dates of study and the name, address, and phone number of the school attended.

b.    Any outside course of study submitted for approval meets the state of California’s Office of Post-Secondary Education’s minimum requirements and be for completion of five hundred (500) hours of on-premises training.

2.    Certification that within one year preceding the application, the applicant has taken and obtained a passing score on the test prescribed by the City Manager in accordance with this Chapter.

a.    The City Manager shall require one of the following eligible testing procedures to be applied to all applicants filing applications for massage technician licenses. In the event the City Manager is apprised of facts indicating that a testing procedure is impractical for the city to verify or to administer, then the City Manager may prescribe that the other eligible testing procedure shall apply to all applicants filing applications for massage technician licenses from and after the date of the City Manager’s determination. The eligible testing procedures that may be prescribed by the City Manager are:

i.    That all applicants take and pass the then current NCE as developed, administered, and verified by the NCBTMB; or

ii.    That all applicants take and pass the then current “City Standardized Massage Technician/Practitioner Test” (“city test”). The city test is a written examination testing the applicant’s knowledge of the basic subject matter, skills, and abilities needed to perform safe and therapeutic massage. The city test is developed by the City Manager, who may rely upon tests developed and administered by other state and local organizations. The city test is administered by the City Manager under conditions adequate to ensure the security and accuracy of the testing procedure. Each city test is designated with a separate identification number for tracking purposes. Applicants are required to answer seventy (70) percent of the questions on the city test correctly in order to pass the test. The score is calculated based on individual test results and is not dependent upon the performance of a group of test takers (i.e., is not graded on a “Bell curve”). The City Council may, by resolution, set and charge a fee for taking the city test. An applicant who fails to pass the city test is not eligible to take the city test until thirty (30) days after the previous city test. An applicant who fails to pass upon a second attempt is not again eligible until six months thereafter. An additional processing fee may be required to be filed with the City Manager prior to taking each city test. The city test will be in English. In the event the applicant does not read and write English sufficient to take and pass the city test, it is the responsibility of the applicant to, at their own expense, make arrangements with a Court-certified interpreter to interpret the examination. Proof of Court certification must be provided to the city prior to the administration of the examination.

b.    If the testing procedure prescribed by the City Manager is the NCE administered by the NCBTMB, then the applicant shall satisfy this subdivision by causing the NCBTMB to mail, directly to the city, a certificate indicating the applicant has taken the NCE and that the applicant obtained the score on that NCE required by NCBTMB to pass that NCE. If the testing procedure prescribed by the City Manager is the city test, then the applicant shall state the date upon which the city test was taken and the identification number provided on the test, so that the City Manager can verify the taking and passing of the test.

c.    Exception. A massage technician is exempt from the testing requirements set forth in Section 4-28.070(B)(2) if he or she has satisfied both of the following requirements:

i.    The massage technician has received at least thirty-two (32) hours of specialized instruction and training in prenatal and perinatal massage therapy from Body Therapy Associates or Bodywork for the Childbearing Year, or another institution approved by the City Manager; and

ii.    The massage technician is currently employed by a licensed massage establishment/operator that provides prenatal and perinatal massage therapy services to at least fifty (50) percent of its clientele.

An applicant provides written evidence of satisfaction of (B)(2)(b)(1) and (2) in order for the exception to be approved by the City Manager.

(Ord. 2003-8 § 4: Ord. 2003-2 §§ 5, 6; prior code § 6-05.060)

4-28.080 Massage technician permit issuance and denial.

A.    Upon receipt of a complete application for a permit, the Chief of Police shall conduct an investigation in order to ascertain whether such permit should be issued as requested. The Chief of Police report his or her findings to the City Manager with a recommendation for action on the permit. The City Manager shall approve, conditionally approve, or deny the application within sixty (60) days of the filing complete application. The sixty (60) day period may be extended for up to thirty (30) additional days by the City Manager at the request of the Chief of Police, in order to complete the investigation. The City Manager shall issue such permit as requested, unless he or she makes any of the following findings:

1.    The applicant has within eight years preceding the date of the application been convicted of any of the following:

a.    A violation of Penal Code Sections 266(h), 266(i), 314, 315, 316, 318, subsections (a) or (b) of Penal Code Section 647 or that the applicant is required to register under the provisions of Penal Code Section 290, or when the prosecution accepted a plea of guilty or nolo contendre to a charge of a violation of California Penal Code Section 415 or any lesser included or lesser related offense, in satisfaction of or as a substitute for, any of the previously listed crimes;

b.    A violation of Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058; or

c.    Any offense in any other state which is the equivalent of any of the above-mentioned offenses in subsections (A)(1)(a) or (A)(1)(b) of this section.

2.    The applicant has engaged in conduct in another jurisdiction which, if it had occurred within the city, would constitute grounds for denial, suspension, or revocation of the massage technician permit under this chapter.

3.    The applicant has been convicted of an act involving dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are substantially related to the qualifications, functions, or duties of a massage technician.

4.    The applicant has had a massage establishment permit or massage technician permit or other similar license or permit denied, suspended, revoked, or refused to be renewed for cause by a licensing authority or by any city, county or state within eight years prior to the date of the application.

5.    The applicant has knowingly made a false, misleading, or fraudulent statement or omission of fact to the city in the permit application process.

6.    The applicant has not complied with Section 4-28.070B of this chapter.

7.    The application does not contain the information required by Section 4-28.070A of this chapter.

8.    If the application is denied for failure to comply with subsections (A)(5) or (A)(7) of this section, the applicant may not reapply for a period of six months from the date the application was denied.

B.    All massage technicians shall comply with the following conditions and any other conditions specified by the City Manager on issuance of the massage technician’s permit.

1.    Except to the extent required, in writing, by a state licensed medical practitioner, no massage technician, massage technician aide, or employee shall massage the genital, buttock, or anal area of any patron or the breast(s) of any female patron. No massage technician, massage technician aide or employee, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person’s genitals, buttock, anus, or, in the case of female, her breast(s), are fully covered.

2.    No massage technician shall massage any patron unless the person’s genitals, buttocks, anus, and in the case of a female, her breast(s), are fully covered at all times while the technician, or other employee is present in the same room as the patron.

3.    The massage technician shall have their massage technician permit on their person at all times when present in the massage establishment. Such identification shall be provided to city regulatory officials upon demand.

4.    Massage technicians shall not perform any massage at any location other than the location specified on the permit.

5.    While on duty, the massage technician shall not use any name other than that specified on the permit.

6.    Massage technicians shall be fully clothed at all times. Clothing shall be of a fully opaque, non-transparent material and provide the complete covering from mid-thigh to three inches below the collar bone.

7.    The massage technician consents to the inspection of the massage establishment by the city’s Building and Safety, Fire Department and Police Department and the Health Department for the purpose of determining that the provisions of this chapter or other applicable laws or regulations are met.

(Ord. 2003-2 §§ 7, 8; prior code § 6-05.070)

4-28.090 Changes of business.

A.    Every massage establishment operator shall report immediately to the Police Department any and all changes of ownership or management of the massage establishment, including, but not limited to, changes of manager or other person principally in charge, stockholders holding more than five percent of the stock of the corporation, officers, directors, and partners in any and all changes of name, style or designation under which the business is to be conducted, and all changes of address or telephone numbers of the massage business. A change of location of any of the premises may be approved by the City Manager provided there is compliance with all applicable regulations of the city.

B.    No massage establishment permit may be sold, transferred, or assigned by a permittee, or by operation of law, to any other person or persons. Any such sale, transfer, or assignment, or attempted sale, transfer, or assignment, shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be null and void; provided and excepting, however, that if the permittee is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of such permit, and in such case, the permit, upon notification to the City Manager, shall be placed in the name of the surviving partners. A massage establishment permit issued to a corporation shall be deemed terminated and void when either any outstanding stock of the corporation is sold, transferred, or assigned after the issuance of a permit, or any stock authorized but not issued at the time of the granting of a permit is thereafter issued or sold, transferred, or assigned. No massage technician permit may be sold, transferred, or assigned by a permittee, or any operation of law, to any other person or persons.

(Prior code § 6-05.080)

4-28.100 Exemption—Existing permittees.

A.    This chapter does not apply to cosmetologists, barbers, or to persons licensed to practice any healing art pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code or the Chiropractic Act when engaging in this practice within the scope of his or her license.

B.    Notwithstanding any other provision of law, this chapter applies to any employee or independent contractor of any person described in subdivision (A) if the employee or independent contractor is engaged in, or is purported to be engaged in, the business of massage, and is located on the same premises as the person described in subdivision (A) and is not licensed pursuant to subdivision (A).

C.    Anyone duly exempted under subsection (A) of this section that employs, contracts with, or utilizes an individual to perform massage or to administer physical therapy treatments as an adjunct to their practice is not a massage establishment or operator as those terms are defined in Section 4-28.020 and is not required to obtain a massage operator’s permit as required by Section 4-28.030.

(Ord. 2005-10 § 2; Ord. 2003-8 § 5: Ord. 2003-2 § 9: prior code § 6-05.090)

4-28.110 Transfer and duration of permits.

A.    No permit issued hereunder is transferable to any other person or establishment, provided, however, an additional location or change of location of a massage technician permit will be allowed upon prior written notice to the City Manager.

B.    Permits for massage operators and technicians are renewed on a year to year basis provided that the permittees continue to meet the requirements set out in this chapter.

1.    Each massage technician whose permit expires between the effective date of this ordinance and February 29, 2004, must comply with Section 4-28.070(B) by February 29, 2004, and his or her massage technician’s permit is hereby extended until February 29, 2004. If said massage technician does not comply with Section 4-28.070(B) by February 29, 2004, then his or her massage technician’s permit expires and he or she must satisfy Section 4-28.070’s requirements for it to be renewed.

2.    Each massage technician whose massage technician permit expires between March 1, 2004, and one year from the effective date of this ordinance, must comply with Section 4-28.070(B) to renew his or her massage technician permit.

C.    Applications for the next ensuing permit are filed with the Chief of Police before the expiration of the existing permit. Temporary permits will not be issued and renewal applications must be filed no later than sixty (60) days prior to the expiration of the permit to prevent a lapse of the permit.

D.    Renewal applications require such information as may be required by the Chief of Police to update the information contained in the original permit application. The renewal application is accompanied by an appropriate filing fee as described in Section 4-28.040(A) of this code.

(Ord. 2003-8 § 6: prior code § 6-05.100)

4-28.120 Suspension, revocation, denial and appeal.

A.    Violation and Noncompliance. The City Manager may refuse to renew a permit or may revoke or suspend an existing permit on the grounds that the applicant or permit holder has failed to comply with the permit conditions or other requirements of this chapter. If a suspended permit lapses during the suspension period, a new application must be made at the end of the suspension period. In any such case, the applicant or permit holder shall have the right to appeal to the City Council in the time and manner set forth in this section.

B.    Revocation and Suspension of Operator’s Permit.

1.    The City Manager may revoke or refuse to renew an operator’s permit if he or she makes any of the findings for denial of a permit under Section 4-28.050A, 4-28.050(B)(1), or 4-28.050(B)(7) of this chapter or upon any subsequent violation of any provision within one year following prior suspension under subsection (B)(2) of this section, or upon demonstrated inability to operate or manage the massage establishment in a law abiding manner, thus necessitating action by law enforcement officers;

2.    The City Manager may suspend an operator’s permit for a period of thirty (30) days for each violation of Section 4-28.050B of this chapter not listed above.

C.    Revocation and Suspension of Massage Technician Permit.

1.    The City Manager may revoke or refuse to renew a massage technician permit if he or she makes any of the findings for denial of a permit under Section 4-28.080A, 4-28.080(B)(1), (B)(2) or (B)(6) of this chapter, or upon any subsequent violation of any provision of this chapter within one year following a suspension under subsection (C)(2) of this section;

2.    The City Manager may suspend a massage technician permit for a period of thirty (30) days for each violation of Section 4-28.080B of this chapter not listed above.

D.    Notice.

1.    When the City Manager concludes that grounds for denial, suspension, revocation, or refusal to renew a permit exist, the Chief of Police shall serve the applicant or permit holder, either personally or by certified mail, addressed to the business or residence address of applicant or permit holder, with a notice of denial or notice of intent to suspend, revoke or refuse to renew permit. This notice shall state the reasons for the proposed action, the effective date of the decision, the right of the applicant or permit holder to appeal the decision to the City Council, and the decision will be final, if no appeal is filed within the time permitted.

E.    Appeal.

1.    The right to appeal to the City Council shall terminate upon the expiration of fifteen (15) days from the date of mailing of the notice. The notice of appeal is to be sent to the Police Department of the city.

2.    In the event an appeal is timely filed, the suspension or revocation shall not be in effect until a final decision has been rendered by the City Council. If no appeal is filed, the suspension or revocation shall become effective upon expiration of the period for filing appeals.

3.    The City Council of the city may preside over the hearing on appeal or, in the alternative, the City Manager may appoint a hearing officer to conduct the hearing, receive relevant evidence, and submit to the City Council, findings and recommendations to be considered by the City Council. The City Council shall render its decision within forty-five (45) days from the date of the hearing or, in the event that a hearing officer has been appointed, within forty-five (45) days from the date on which the City Council receives the findings and recommendations of the hearing officer. The decision of the City Council shall be final. The applicant shall be entitled to notice of the basis for the proposed action, a copy of the documents upon which the decision was based, and the opportunity to present contrary evidence at the hearing.

4.    Notice of the date, time, and place of the hearing shall be mailed at least ten days prior to the date of the hearing, by the U.S. Mail, with proof of service attached, addressed to the address listed on the massage application, massage technician application, or, the address given in the Notice of Appeal, as the case may be.

5.    The following rules of evidence shall apply:

a.    Oral evidence shall be taken only under oath or affirmation. The hearing officer shall have authority to administer oaths, and to receive and rule on admissibility of evidence.

b.    Each party shall have the right to call and examine witnesses, to introduce exhibits, and to cross-examine opposing witnesses who have testified under direct examination. The hearing officer may call and examine any witness.

c.    Technical rules relating to evidence and witnesses shall not apply to hearings provided for in this chapter. Any relevant evidence may be admitted if it is material and is evidence customarily relied upon by responsible persons in the conduct of their affairs regardless of the existence of any common law or statutory rule which might make admission of such evidence improper over objection in civil actions. Hearsay testimony may be admissible and used for the purpose of supplementing or explaining any evidence given in direct examination, but shall not be sufficient in itself to support a finding unless such testimony would be admissible over objection in civil actions. The rules of privilege shall be applicable to the extent they are now, or are hereafter permitted in civil actions. Irrelevant, collateral, undue, and repetitious testimony shall be excluded.

6.    No permit granted herein shall confer any vested right to any person or business for more than the permit period. All massage operators, managers, and technicians subject to this chapter shall comply with the provisions of this chapter as they may be amended hereafter.

(Prior code § 6-05.105)

4-28.130 Violation—Penalty.

A.    Violators of this chapter may be cited and enforcement action taken pursuant to the provisions of Chapter 1-32 of this code.

B.    Any massage establishment operated, conducted, or maintained contrary to the provisions of this chapter shall be, and the same is hereby declared to be, unlawful and a public nuisance, and the city may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal, and enjoinment thereof, in the manner provided by law, and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such massage establishments and restrain and enjoin any person from operating, conducting, or maintaining a massage establishment contrary to the provisions of this chapter.

(Prior code § 6-05.110)