Chapter 5.40
MASSAGE

Sections:

5.40.010    Purpose.

5.40.020    Definitions.

5.40.030    Permit required—Massage establishment—Outcall service—Massage technician.

5.40.040    Business registration tax requirement.

5.40.050    Permit not required.

5.40.060    Massage establishment, outcall massage service permit application.

5.40.070    Massage establishment and outcall operating requirements.

5.40.080    Massage establishment facilities regulations.

5.40.090    Inspection by officials.

5.40.100    Permits nonassignable.

5.40.110    Change of location or name.

5.40.120    Massage technician—Permit required.

5.40.130    Massage technician permit application.

5.40.140    New massage technicians—Notification.

5.40.150    Renewal of permits—Massage establishment, outcall massage service, massage technician.

5.40.160    Application of regulations to existing massage establishments, outcall services, and massage technicians.

5.40.170    Prohibited conduct.

5.40.180    Suspension or revocation hearing.

5.40.190    Appeal procedures.

5.40.200    Burden of proof.

5.40.210    Public nuisance.

5.40.010 Purpose.

It is the purpose and intent of the City Council that the operation of massage establishments, outcall massage services, and persons offering massage and bodywork be regulated in the interests of public health, safety and welfare by providing minimum building sanitation and health standards and to insure that persons offering massage shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered. Further, it is the intent of this chapter to insure that such businesses and persons operate in a manner that prevents criminal behavior such as the solicitation of prostitution. (Ord. 1228 § 1 (part), 1997)

5.40.020 Definitions.

Unless the particular provision or 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:

“Applicant” means the permit applicant and each of the following persons: the managing responsible officer/employee,

a general partner, a limited partner who owns or controls twenty percent or more of the business, a shareholder of a corporation who owns or controls twenty percent or more of the shares of the corporation which owns the business.

“Bodywork” means the skillful application of touch to enhance health and well-being. “Bodywork” includes a variety of philosophical approaches, theoretical frameworks, and techniques such as massage, movement and education. The term “bodywork” shall be deemed a form of massage and be subject to requirements of this chapter.

“Employee” means any and all persons, other than a massage technician, employed by the massage establishment who may render any service to the permittee, and who receives compensation from the establishment and who has no physical contact with the customers or clients. The term “employee” shall include independent contractors who are regularly employed by the establishment and who work at the massage establishment.

“Massage” means any method of treating the external parts of the body for remedial, health, or hygienic purposes for any form of consideration (whether for the massage, as part of a membership, as part of other services or a product, or otherwise) by means of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances; or with or without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in this practice; or by baths, including but not limited to Turkish, Russian, Swedish, Japanese, vapor, shower, electric tub, sponge, mineral, fomentation, or any other type of bath.

“Massage/bodywork professional” means a nonmedical health care professional who offers services to the public using a massage or bodywork specialty and health enhancement approach in caring for clients and has obtained a permit as required by this chapter.

“Massage establishment” means any establishment having a fixed place of business where any person, firm, associations, partnership, or corporation engages in, conducts, or carries on, or permits to be engaged in, conducted or carried on, any massage.

“Massage technician,” “massage trainee,” “masseur,” “masseuse,” and “massage therapist” mean any person who administers massage to another person, for any form of consideration (whether for the massage, as part of other services or a product, or otherwise).

“Outcall massage service” means any business where a function of such business is to engage in or carry on massage, not at a fixed location but at a location designated by the customer, massage technician, or other person.

“Recognized school of massage” means any school or institution of learning which teaches the theory, ethics, practice, profession, or work of massage and/or bodywork, which has been approved pursuant to the California Education Code. Schools offering a correspondence course not requiring attendance shall not be deemed a recognized school. The City shall have the right to confirm that the applicant has actually attended class in a recognized school. (Ord. 1228 § 1 (part), 1997)

5.40.030 Permit required—Massage establishment—Outcall service—Massage technician.

It is unlawful for any person, association, partnership or corporation to engage in, conduct or carry on, or permit to be engaged in, conducted or carried on in or upon any premises within the City, the operation of a massage establishment or outcall massage service or the function of a massage technician without first having obtained a permit issued by the City pursuant to the provisions set forth in this chapter. A permit shall be valid for twenty-four months from the date of issuance unless revoked or suspended. (Ord. 1372 § 1 (part), 2006: Ord. 1228 § 1 (part), 1997)

5.40.040 Business registration tax requirement.

A massage establishment and outcall massage service shall pay any required business registration tax for such business and occupation. (Ord. 1228 § 1 (part), 1997)

5.40.050 Permit not required.

The provisions of this chapter shall not apply to the following classes of individuals or businesses while engaged in the performance of their duties provided sufficient documentation verifying exempt status is furnished to the Chief of Police.

A.    Physicians, surgeons, chiropractors, osteopaths, nurses or any physical therapists who are duly licensed to practice their respective professions in the State of California.

B.    Barbers, beauticians, and aestheticians who are duly licensed under the laws of the State of California while engaging in practices within the scope of their licenses, except that this provision shall apply solely to the massaging of the neck, face and/or scalp of the customers.

C.    Hospitals, nursing homes, sanatoriums, or any other health facilities duly licensed by the State of California.

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

E.    Trainers of amateur, semiprofessional or professional athletes or athletic teams while engaging in their training responsibilities for and with athletes. (Ord. 1372 § 1 (part), 2006: Ord. 1228 § 1 (part), 1997)

5.40.060 Massage establishment, outcall massage service permit application.

A.    Any person, corporation, or partnership desiring to obtain a permit to operate a massage establishment or outcall massage service shall make application to the Chief of Police or authorized representative. Prior to submitting such application, a nonrefundable fee set forth in the City fee schedule, shall be paid. A copy of the receipt shall accompany the application.

B. The application and fee required under this section shall be in addition to any license, permit or fee required under any other chapter of this Code.

C. The application for permit does not authorize a massage establishment or outcall service to operate until such permit has been granted.

D. Each applicant for a permit shall submit the following information under penalty of perjury:

1. The full true name under which the business will be conducted.

2. The present or proposed address where the business is to be conducted.

3. The applicant’s full, true name, and other names used, date of birth, California driver’s license number or California identification number, social security number, present residence address and telephone number. The sex, height, weight, color of hair, and color of eyes. Such other identification and information shall be provided as required by the Chief of Police or his representative, necessary to discover the truth of the matters specified and required in the application.

4. The applicant’s residences inclusive of dates at each address, for the last five years.

5. The applicant’s business, occupation, and employment history for five years preceding the date of application, and the inclusive dates of same.

6. The permit history of the applicant, 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 revoked or suspended; or if a vocational or professional license or permit was issued, revoked, or suspended and the reason therefor.

7. All convictions for any crime involving conduct which requires registration under California Penal Code Section 290, or convictions of California Penal Code Sections 314, 315, 316, 318, 647(b), (as now written or as amended), or convictions of crimes designated in Government Code Section 51032(b), or any crime involving dishonesty, fraud, deceit, violence or moral turpitude. Convictions under the laws of other states or countries which proscribe the same conduct or similar conduct as the afore-designated California crimes shall be provided. Convictions that have been expunged must be reported.

8. A complete definition of all services to be provided.

9. The name, address, and date of birth of each massage technician or employee who is or will be employed in the massage establishment or outcall service.

10. The name and address of any massage business or other like establishment owned or operated by any person whose name is required to be given pursuant to this section.

11. Acceptable written proof that the applicant is at least eighteen years of age.

12. 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.

13. If the applicant is a partnership, the application shall set forth the names and residence address of each of the partners, including limited partners. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership as filed with the County Clerk. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporate applicants shall apply to the corporate partner.

14. The applicant, corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer/employee. Such person shall complete and sign all application forms required of an individual applicant under this chapter. The corporation’s or partnership’s responsible managing officer must, at all times, meet all of the requirements set for permittees by this chapter or the corporation or partnership permit shall be suspended until a responsible managing officer who meets such requirements is designated. If no such person is found within ninety days, the corporation or partnership permit is deemed cancelled and a new application for permit must be filed.

15. The Chief of Police or his/her authorized representative may require the applicant to furnish fingerprints when needed for the purpose of establishing identification. Fingerprinting will be taken at a place designated by the Chief of Police. Any required fingerprinting fee will be the responsibility of the applicant.

16. Two photographs of the applicant and managing responsible officer to be taken by the police department.

17. A description of any other business to be operated on the same premises, or on adjoining premises, owned or controlled by the applicant.

18. The name and address of the owner and lessor of the real property upon or in which the business is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized acknowledgement from the owner of the property that a massage establishment will be located on his/her property.

19. Authorization for the City, its agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant and the responsible managing officer.

20. Proof of massage malpractice insurance in the sum of no less than one million dollars.

21. The applicant shall submit any change of address or fact which may occur during the procedure of applying for a massage establishment permit.

22. A certificate of compliance from both the City Code Enforcement Bureau and the Health Officer for the City (as designated by the City Manager) which certifies that the premises of the massage establishment meets all applicable codes and regulations must be submitted prior to application approval. Any required inspection fees shall be the responsibility of the applicant.

E.    The Chief of Police or authorized representative shall have up to sixty days, after submission of all required information, including the required certificates of compliance, to investigate the application and the background of the applicant. Upon the completion of the investigation, the Chief of Police, or authorized representative, shall grant the permit, with or without conditions, if the Chief finds in the exercise of discretion all of the following:

1.    The required fee has been paid.

2.    The application conforms in all respects to the provisions of this chapter.

3.    The applicant has not made a material misrepresentation in the application.

4.    The applicant, if an individual, or any of the stockholders of the corporation, or any officers or director, if the applicant is a corporation; or a partner if the applicant is a partnership, or the managing responsible officer has not been convicted within five years preceding application in a court of competent jurisdiction of an offense involving conduct which requires registration under California Penal Code Section 290, or of conduct which is a violation of the provisions of California Penal Code Sections 314, 315, 316, 318, 647(b) (as now written or as amended), or of crimes that are designated in Government Code Section 51032(b), or any other crime involving dishonesty, fraud, deceit, violence or moral turpitude. Convictions under the laws of other states or countries which proscribe the same or similar conduct as the afore-designated California crimes shall be considered.

5.    Within five years preceding application, the applicant or managing responsible officer/employee has not had a massage establishment, outcall service massage technician, or other similar permit or license revoked, or suspended by the City, or any other State or local agency prior to the date of approval or engaged in conduct that would be a grounds for revocation of a permit under this chapter.

6.    The applicant is at least eighteen years of age.

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

F.    If the Chief of Police or authorized representative, following investigation of the applicant, in the exercise of discretion, fails to make the findings stated in subsection E of this section, the Chief shall deny said application by written notice to the applicant.

G.    A massage establishment comprised entirely of persons exempt under Section 5.40.050 shall not be required to obtain a massage permit. However, proper documentation shall be furnished to the Chief of Police to verify the exempt status.

H.    In the event an applicant has a valid permit for massage with another city, then when able to do so, the Chief of Police may use the background investigation from that city to determine the extent necessary for the background investigation for the City of San Carlos. (Ord. 1372 § 1 (part), 2006; Ord. 1228 § 1 (part), 1997)

5.40.070 Massage establishment and outcall operating requirements.

No person shall engage in, conduct, carry on, or permit to be engaged in, conducted, or carried on, any massage establishment or outcall service, unless each and all of the following requirements are met:

A.    Each person employed or acting as a massage technician shall have a valid permit issued by the Chief of Police which shall be clearly visible on the massage technician’s person during working hours. It is unlawful for any owner, manager, operator, responsible managing officer/employee, or permittee to employ or permit a person to act as a massage technician who is not in possession of a valid, unrevoked massage technician permit issued pursuant to this chapter.

B.    The possession of a valid massage establishment permit does not authorize the possessor or any other person to perform work for which a massage technician permit is required.

C.    Massage shall be provided or given only between the hours of seven a.m. and ten p.m. No massage establishment shall be open and no customer shall be in the establishment between ten p.m. and seven a.m. No outcall massage shall be provided or given before seven a.m. or after ten p.m.

D.    A list of services available and the cost of such services shall be posted in an open public place within the premises, and shall be described in readily understandable language. No owner, manager, operator, responsible managing employee, or permittee shall permit, and no massage technician shall offer or perform, any service other than those posted.

E.    The massage establishment permit and a copy of the permit of each and every massage technician employed in the establishment shall be displayed in an open and conspicuous place on the premises.

F.    Every massage establishment and outcall massage service shall keep a written record of the date and hour of each service provided; the name and address of each patron and the service received; and the name of the massage technician administering the service. Such records shall be open to inspection only by officials, including the Police Department and the City Attorney, charged with enforcement of this chapter and for no other purpose, including a prohibition of use of the file by owners and employees of the establishment. Such records shall be retained on the premises of the massage establishment and at the outcall business office for a period of two years.

G.    Massage establishments shall at all times be equipped with an adequate supply of clean sanitary towels, coverings and linens. Clean towels, coverings and linens shall be stored in enclosed cabinets. Towels and linens shall not be used on more than one patron, unless they have first been laundered and disinfected. Disposable towels and coverings shall not be used on more than one patron. Soiled linens and paper towels shall be deposited in separate, approved receptacles.

H.    If male and female patrons are to be treated simultaneously at the same massage establishment, a separate massage room or rooms, separate dressing facilities and separate toilet facilities shall be provided for male and female patrons. Nothing herein shall be construed to authorize the treatment of only one sex if that is in violation of any civil rights or other laws requiring service to both genders.

I.    Wet and dry heat rooms, steam or vapor rooms or cabinets, toilet rooms, shower and bath rooms, tanning booths, whirlpool baths and pools shall be thoroughly cleaned and disinfected as needed, and at least once each day the premises are open, with a disinfectant approved by the health officer of the City. Bathtubs shall be thoroughly cleaned with a disinfectant approved by the Health Department after each use. All walls, ceilings, floors, and other physical facilities for the establishment must be in good repair, and maintained in a clean and sanitary condition.

J. Instruments utilized in performing massage shall not be used on more than one patron unless they have been sterilized, using approved sterilization methods.

K. All employees, including massage technicians, shall wear clean, nontransparent outer garments. Said garments shall not expose their genitals, pubic areas, buttocks, or chest.

L. No person shall enter, be or remain in any part of a massage establishment while in possession of an open container of alcohol, or consuming or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs. The owner, operator, responsible managing employee, manager, or permittee shall not permit any such person to enter or remain upon such premises.

M. No massage establishment or outcall massage service shall operate as a school of massage, or use the same facilities as that of a school of massage.

N. No massage establishment or outcall massage service granted a permit under the provisions of this chapter shall place, publish or distribute or cause to be placed, published or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers that any service is available other than those services described in Section 5.40.020 of this chapter, nor shall any massage establishment or outcall massage service employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available other than those services as described in Section 5.40.020 of this chapter.

O. No massage may be carried on within any cubicle, room, booth or any area within a massage establishment which is fitted with a door capable of being locked. All doors to dressing rooms and treatment rooms shall open inward. Draw drapes, curtain enclosures, or accordion-pleated closures are acceptable on all inner dressing and treatment rooms in lieu of doors.

P. All main exterior doors into the establishment shall remain unlocked during the business hours of the massage establishment.

Q. A massage shall not be given unless the patron’s genitals are fully covered and, in addition, a female patron’s breasts are fully covered.

R. No massage establishment shall be open for business without at least one massage technician on the premises at all times who is in possession of a current, unrevoked permit.

S. A massage table with a washable pad on the table surface shall be used for massage. (Ord. 1228 § 1 (part), 1997)

5.40.080 Massage establishment facilities regulations.

Every massage establishment shall maintain facilities meeting the following requirements:

A. Any signs shall be in conformance with the current ordinances of the City.

B. Minimum lighting shall be provided in accordance with Article 200 of the National Electrical Code, and, in addition, at least one artificial light of not less than forty watts shall be provided in each room or enclosure where massage services are performed on patrons.

C. Minimum ventilation shall be provided in accordance with the Uniform Building Code.

D. Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be provided.

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

F. Closed cabinets shall be provided for storage of clean linens.

G. Adequate bathing, dressing, locker and toilet facilities shall be provided for patrons. A minimum of one tub or shower and a dressing room containing separate lockers which are capable of being locked must be provided for male and female patrons.

H. A minimum of one separate wash basin for employees shall be provided at all times. The basin shall be located within or as close as practicable to the area devoted to performing of massage services. Sanitary towels shall also be provided at each basin.

I. Pads used on massage tables shall be covered with a durable washable plastic or other waterproof material acceptable to the Health Officer of the City.

J. Proof of compliance with all applicable provisions of the City of San Carlos Municipal Code shall be provided prior to the issuance of any permit.

K. Outcall Massage Service. Any massage technician who provides massage at any hotel or motel, shall first notify the owner, manager, or person in charge thereof that such permittee intends to provide massage to a person or persons registered at the hotel or motel and give such owner, manager, or person in charge the name of his/her massage technician permit. (Ord. 1228 § 1 (part), 1997)

5.40.090 Inspection by officials.

The investigating and enforcing officials of the City, including the Health Officer for the City (as designated by the City Manager), or their designees, shall have the right to enter the premises from time to time during regular business hours for the purpose of making reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing or health regulations, and to enforce compliance with applicable regulations, laws, and provisions of this chapter. (Ord. 1228 § 1 (part), 1997)

5.40.100 Permits nonassignable.

No massage establishment or outcall massage service permit may be sold, transferred or assigned by the 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 deemed terminated 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 affecting a surrender or termination of such permit and in each case the permittee shall thereafter be deemed to be the surviving partner(s). If the permit is issued to a corporation, stock may be sold, transferred, issued, or assigned to stockholders who have been named on the application. If any stock is sold, transferred, issued, or assigned to a person not listed on the application as a stockholder, the permit shall be deemed terminated and void unless the new stockholders are identified within ten days of transfer and they meet all requirements under this chapter for stockholders. (Ord. 1228 § 1 (part), 1997)

5.40.110 Change of location or name.

A.    A change of location of a massage establishment may be approved by the Chief of Police, the Planning Director, Building Official, and the Fire Chief or their designated representatives, provided all ordinances and regulations of the City are complied with.

B.    No permittee shall operate under any name or conduct any massage establishment or outcall service under any designation not specified in the approved permit.

C.    Any application for an expansion of a building or other place of business or a massage establishment shall require compliance with this chapter; no expansion of a nonconforming location shall be permitted. (Ord. 1228 § 1 (part), 1997)

5.40.120 Massage technician—Permit required.

No person shall engage in the business of massage or act as a massage technician unless such person holds a valid massage technician’s permit issued by the City. Each massage technician permit holder shall be issued a photo identification badge which will also serve as a massage technician permit. The permit holder shall display the massage technician permit on his/her person during business hours. (Ord. 1228 § 1 (part), 1997)

5.40.130 Massage technician permit application.

A.    Each applicant for a massage technician permit shall make application to the Chief of Police or his/her designee. Prior to submitting an application, a nonrefundable fee in the sum set forth in the City fee schedule shall be paid to help defray the costs of the investigation required by this chapter. A copy of the cashier’s receipt shall accompany the application.

B.    Permit fees required under this section shall be in addition to any license, permit or fee requirements under any other section or ordinance of this code.

C.    The application for permit does not authorize the applicant to provide massage until such permit has been granted.

D.    Each applicant for a massage technician permit shall submit the following information under penalty of perjury:

1.    All information required by Section 5.40.060(D)(3) through (8), (11), (16), (21) and (22) of this chapter.

2.    The applicant must furnish a diploma or certificate of graduation from either a two-hundred-hour resident course of instruction from either:

a.    A recognized school as defined in Section 5.40.020 of this chapter; or

b.    An existing school or institution of learning outside the State of California together with a certified transcript of the applicant’s school records showing date of enrollment, hours of instruction and graduation from a course having at least a minimum requirement prescribed by Title 5, Division 21, of the California Administrative Code; wherein the theory, method, profession and work of massage is taught, and a copy of the school’s approval by its State Board of Education.

3.    The massage establishment’s full name, address and telephone number if the massage technician will be employed at a fixed place of business. In the event the applicant seeks to conduct outcall massage services, an additional application and fee must be submitted.

4.    Such other identification and information as the Police Department may require in order to fully investigate the matters as required to be set forth in the application.

5.    Two photographs of the applicant to be taken by the City Police Department designee. Nothing contained herein shall be construed to deny the right of the Chief of Police or his designee to confirm the height and weight of the applicant, or to take additional photographs.

6.    The Chief of Police or authorized representative may require the applicant to furnish fingerprints when needed for the purpose of establishing identification. Any required fingerprinting fees will be the responsibility of the applicant. Fingerprinting shall be taken at a place designated by the Chief.

7.    A certificate from a medical doctor licensed to practice in the State of California stating that the applicant has within thirty days immediately preceding the date of application been examined and found to be free of any contagious or communicable disease. Pursuant to Health and Safety Code Section 199.20, and unless otherwise required by State or federal law, nothing in this chapter shall require testing or disclosure as to whether an applicant is infected with the human immunodeficiency virus (HIV).

8.    Authorization for the City, its agents and employees, to seek information and to investigate the truth of the statements set forth in the application and to investigate the background of the applicant.

9.    Each applicant shall successfully complete both a written test and practical performance examination administered through the City wherein the applicant has been required to demonstrate a basic knowledge of anatomy, physiology, hygiene, and massage.

E.    The Chief of Police or authorized representative shall have up to sixty days after the submission of all required information to complete his investigation. Upon completion of the investigation, the Chief, or authorized representative, shall grant the permit, with or without conditions, if in the exercise of discretion he finds those matters designated in Section 5.40.060(E), excepting (7), and in the exercise of discretion further finds:

1.    The applicant has furnished an acceptable diploma or certificate of graduation from a recognized school;

2.    The applicant has furnished written proof from a recognized school that the minimum number of hours of instruction have been completed;

3.    The applicant has passed the test required herein.

F.    If the Chief of Police or authorized representative, following investigation of the applicant, in the exercise of discretion, fails to make the findings in subsection E of this section, the Chief, or authorized representative, shall deny said application by dated, written notice. (Ord. 1372 § 1 (part), 2006; Ord. 1228 § 1 (part), 1997)

5.40.140 New massage technicians—Notification.

The holder of the massage establishment or outcall service permit shall notify the Chief of Police, in writing, of the name and address of each person employed as a massage technician at such establishment within five days of this person’s being employed. The requirements of this section are in addition to the other provisions of this chapter; and nothing contained herein shall relieve the permittee of the responsibility of ascertaining, prior to employment, that said person has a current unrevoked massage technician’s permit. (Ord. 1228 § 1 (part), 1997)

5.40.150 Renewal of permits—Massage establishment, outcall massage service, massage technician.

Permittees shall have thirty days from date of expiration to renew their permit. If, upon the thirty-first day an application of renewal has not been received, the permit shall be deemed suspended until such time as the renewal application has been received. If a renewal application and all required information for the renewal is not received within sixty days after expiration, the license shall be deemed expired and no privilege to provide massage shall exist.

Renewals shall be processed and investigated as though they were initial applications, except that the applicant is required to submit only that information which has changed from the last application or renewal. A fingerprint check will be completed upon each renewal. (Ord. 1372 § 1 (part), 2006: Ord. 1228 § 1 (part), 1997)

5.40.160 Application of regulations to existing massage establishments, outcall services, and massage technicians.

The provisions of this chapter shall be applicable to all persons and businesses whether the business was established before or after the effective date of the ordinance codified in this chapter, except that massage establishments or outcall services legally in business prior to the effective date shall have ninety days to file for a massage establishment or outcall service permit and to comply with the provisions of this chapter. Massage technicians who have valid massage technician permits shall have until the expiration of their current business permit to apply for a massage technician permit under the terms of this chapter but shall otherwise comply with the regulations set forth herein within ninety days. (Ord. 1228 § 1 (part), 1997)

5.40.170 Prohibited conduct.

It is unlawful and a misdemeanor for any person to violate any of the mandatory requirements of this chapter. (Ord. 1228 § 1 (part), 1997)

5.40.180 Suspension or revocation hearing.

The Chief of Police or authorized representative may revoke or suspend a massage establishment permit or massage technician permit if it is found that the permittee does not possess the qualifications for the permit as required by this chapter, has been convicted of any violation of the provisions of this chapter or any lesser included offense, has made a material misrepresentation on the permit application or renewal or has violated any mandatory provisions of this chapter, any conditions of the permit, or any of the laws which would have been grounds for denial of the permit. For purposes of this section, permittee shall include the managing responsible officer or employee. Further, the permittee shall be responsible for those acts of its employees which are done in the course and scope of their employment by the permittee.

A hearing shall be scheduled upon not less than ten calendar days’ notice to the permittee stating the grounds for proposed revocation or suspension. Notice shall be given by personal service or certified mail to the address shown on the last application or renewal. If reasonable attempts to otherwise serve are not successful, service may be provided by first class mail.

Notice of the decision shall be given in the same manner as for the hearing. The decision of the Chief of Police or his authorized representative may be appealed by the permittee to the City Manager within fifteen calendar days of service by filing written notice of appeal with the City Manager’s office stating the basis for the appeal and the errors claimed to have occurred. If the permit is suspended or revoked, the permit shall be surrendered.

Service shall be deemed complete when personal service is made, when the certified letter is delivered, or when the decision is mailed by first class mail. (Ord. 1228 § 1 (part), 1997)

5.40.190 Appeal procedures.

The permittee or applicant, not later than fifteen calendar days after service of notice of revocation, suspension, denial of application or renewal or approval with conditions, may file an appeal by filing a written statement of such appeal, including the grounds for the appeal and the asserted errors in the decision, with the City Clerk.

The City Manager or designee shall review the record of the hearing below including a transcript or a tape of the hearing. No further testimony shall be taken. The Manager or designee shall also allow oral argument not to exceed thirty minutes per side. Notice of the time for appeal argument shall be given by personal service or certified mail to the address shown on the last application or renewal. If reasonable attempts to otherwise serve are not successful, service may be provided by first class mail.

After the argument, the City Manager or designee shall render a written decision within ten working days from the date the matter is submitted for decision.

The action of the City Manager shall be final and conclusive. The decision shall be served upon the permittee pursuant to the procedures for scheduling the argument.

Service shall be deemed complete when personal service is made, when the certified letter is delivered, or when the notice is mailed by first class mail. (Ord. 1228 § 1 (part), 1997)

5.40.200 Burden of proof.

Unless otherwise specifically prohibited by law, the burden of proof is on the permittee/applicant in any hearing or other matter under this chapter. (Ord. 1228 § 1 (part), 1997)

5.40.210 Public nuisance.

Any massage establishment operated, conducted, or maintained contrary to the provisions of this chapter is unlawful and a public nuisance, and the City Attorney may in the exercise of discretion, 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 a manner provided by law. (Ord. 1228 § 1 (part), 1997)