Chapter 5.46
MASSAGE ESTABLISHMENTS
Sections:
5.46.010 Findings and purpose.
5.46.030 Applicability – Certificate of operation and permits required.
5.46.040 CAMTC certificate required.
5.46.060 Certificates of operation.
5.46.080 Operator permit term and renewal.
5.46.090 Issuance or denial of operator permit.
5.46.100 Worker permit required.
5.46.120 Suspension, revocation, denial and appeal.
5.46.140 New application after denial or revocation of permit.
5.46.180 Inspections and investigations.
5.46.190 Change in or transfer of ownership of business.
5.46.200 Change of location or name.
5.46.210 Violation and penalty.
5.46.010 Findings and purpose.
The city council finds and declares as follows:
A. The permit requirements and restrictions imposed by this chapter are reasonably necessary to protect the health, safety and welfare of the citizens of the city.
B. The city is authorized, by virtue of the Constitution of the state of California, and Section 51031 of the California Government Code, to regulate massage establishments by imposing reasonable standards for, and conditions on, the operation of massage establishments.
C. There is opportunity for acts of prostitution and other unlawful sexual activity to occur in massage establishments. Courts have long recognized massage as a pervasively regulated activity and that massage establishments have been known to be brothels in disguise and even engage in human trafficking. The establishment of reasonable standards for issuance of permits and restrictions on operations would serve to reduce the risk of illegal activity, including human trafficking.
D. The restrictions and requirements contained in this chapter are intended to reduce the burden of massage establishment regulation on the police department.
E. The regulations and restrictions contained in this chapter are intended to discourage massage establishments from degenerating into houses of prostitution and the means utilized in this chapter bear a reasonable and rational relationship to the goals sought to be achieved. (Ord. 875 § 2, 2016).
5.46.020 Definitions.
A. For the purposes of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
1. “Adult oriented merchandise” means sexually oriented implements or paraphernalia, such as, but not limited to: dildos, auto sucks, sexually oriented vibrators, Ben Wa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity.
2. “CAMTC certificate” means a certificate to practice massage, issued by the California Massage Therapy Council (CAMTC) pursuant to the California Business and Professions Code Sections 4600 et seq.
3. “Certificate of operation” means the certificate issued by the provisions of this chapter authorizing a business to be operated as a massage establishment.
4. “Chief of police” means the chief of police of the city of Bell Gardens, or designee.
5. “City” means the city of Bell Gardens.
6. “City council” means the city council of the city of Bell Gardens.
7. “City manager” means the city manager of the city of Bell Gardens, or designee.
8. “Conviction” or “convicted” means a guilty plea, guilty verdict or a conviction following a plea of nolo contendere.
9. “Customer area” means areas open to customers of the establishment or the general public.
10. “Disqualifying conduct” means any of the following:
a. Within 10 years preceding the date of filing of the application in question or, in the case of revocation proceedings, within 10 years preceding the date of the revocation notice, has been convicted in a court of competent jurisdiction of any of the following:
i. A violation of any provision of law pursuant to which a person is required to register under the provisions of Penal Code Section 290; or
ii. Conduct in violation of Penal Code Section 266h, 266i, 314, 315, 316, 318, 653.22, or 653.23, or subsections (a), (b) or (d) of Penal Code Section 647; or
iii. An attempt to commit or conspiracy to commit any of the above-mentioned offenses; or
iv. Any other crime involving dishonesty, fraud, or deceit; or
v. When the prosecution accepted a plea of guilty or nolo contendere to a charge of a violation of Penal Code Section 415 or 602 or any lesser included or related offense, in satisfaction of, or as a substitute for, any of the previously listed crimes; or
vi. Any crime committed while engaged in the management or ownership of a massage establishment or the practice of massage; or
vii. A violation of Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in Health and Safety Code Section 11054, 11055, 11056, 11057 or 11058; or
viii. Any offense under a statute of any state or ordinance of any city or county, which is the equivalent of any of the aforementioned offenses, including Business and Professions Code Section 4609(a); or
b. Within 10 years preceding the date of the filing of the application in question or, in the case of revocation proceedings, within 10 years preceding the date of the revocation notice, has had any massage establishment, operator, technician, practitioner, therapist or trainee certificate, license or permit issued by any state or local agency or other licensing authority denied, revoked or suspended, or has had to surrender such a license or permit as a result of pending criminal charges or in lieu of said license or permit being suspended or revoked; or
c. Has been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Sections 11225 through 11235 of the Penal Code as the same may be amended from time to time, or any similar provisions of law in a jurisdiction outside the state of California; or
d. Within five years preceding the date of filing of the application in question or, in the case of revocation proceedings, within five years preceding the date of the revocation notice, has been convicted in a court of competent jurisdiction of any of the following:
i. Any crime, other than an infraction or those listed above, involving dishonesty, fraud, or deceit with the intent to substantially benefit himself or another, or substantially injure another; or
ii. Any crime, other than an infraction or crimes relating to those offenses listed above, where the crime or act is substantially related to the management or ownership of a massage establishment or the practice of massage, including a violation of the Massage Therapy Act; or
e. Has been found to be maintaining a nuisance in connection with the same or similar type of business; or
f. Within five years preceding the date of filing of the application in question or, in the case of revocation proceedings, within five years preceding the date of the revocation notice, has engaged in the exposing of specified anatomical areas of oneself or of another person to view, or in touching the specified anatomical areas of oneself or of another person, while providing massage services or while within view of a customer or patron of the massage establishment; or
g. Within five years preceding the date of filing of the application in question or, in the case of revocation proceedings, within five years preceding the date of the revocation notice, has been the owner, manager, or other similar position in an establishment where there is substantial evidence that disqualifying conduct described above has occurred by others on the premises, regardless of whether there was a conviction of such persons.
h. Disqualifying conduct does not include the failure to obtain a certificate of operation, operator permit or work permit without any prior oral or written notification by the city that such was required; provided, that the business and/or person cease operations immediately upon notification.
11. “Employee” means any and all persons, other than an operator or manager, who renders any service, with or without compensation, for the owner, operator, manager or agent of either an owner, operator or manager of a massage establishment and who has no physical contact with customers or clients. For purposes of this chapter the term “employee” shall include independent contractors.
12. “Health department” means the department of public health, county of Los Angeles.
13. “Lobby” means one room or designated area, adjacent to a public entry, which is used for an entry or waiting room for customers or other persons authorized to enter the premises.
14. “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 corresponding liabilities and responsibilities. Evidence of management includes, but is not limited to, evidence that the individual has the power to direct or hire and dismiss employees, control hours of operation, create policy or rules or purchase supplies. A manager may also be an owner.
15. “Massage” means any method of manipulating the soft tissues of the human body for remedial, health, hygienic, relaxation or any other reason or purpose, whether by means of pressure on, friction against or stroking, kneading, tapping, pounding, vibrating, rubbing or any other manner of touching external parts of the human 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 type of business or trade.
16. “Massage establishment” means any enterprise or establishment having a fixed place of business conducted within the city of Bell Gardens, where any person, firm, association, partnership, corporation, or combination of individuals engages in, conducts, carries on or permits to be conducted or carried on, for money or any other consideration, the administration to another person of a massage, bath or health treatment involving massages or baths including, but not limited to, fomentation, electric or magnetic treatments, alcohol rubs, or any other type of system for treatment or manipulation of the human body with or without any character of bath, such as Turkish, Russian, Swedish, Japanese, vapor, shower, electric tub, sponge, mineral, fomentation, or any other type of bath.
17. “Massage room” means a cubicle, booth, room or enclosed or semi-enclosed area within a massage establishment where massage services are performed on patrons.
18. “Massage technician” means a person who is certified by the CAMTC in accordance with the Massage Therapy Act. The terms “massage therapist,” “massage practitioner,” “massage trainee,” “masseur” or “masseuse” are included within this definition for purposes of this chapter.
19. “Operator” means all persons who have an ownership interest in the massage establishment. An operator may also be a manager or an owner. A proposed operator shall provide all of the information required for and meet all of the standards set forth in BGMC 5.46.070 to qualify as an operator.
20. “Operator’s permit” means the permit issued pursuant to the provisions of this chapter required to operate or manage a massage establishment.
21. “Out call massage” means a massage performed or administered for money or other consideration by a licensed massage technician at a location other than a licensed massage establishment.
22. “Owner” means the individual(s) whose name appears on the city business license and includes any and all persons who have any ownership interest in a massage establishment. An owner may also be an operator or manager.
23. “Permit” includes an operator permit, worker permit, or certificate of operation, unless the context indicates otherwise.
24. “Person” means any natural person, individual, or corporation, partnership, association or other group or combination of individuals acting as an entity.
25. “Police department” means the police department of the city of Bell Gardens.
26. “Specified anatomical areas” means and includes any of the following human anatomical areas: genitals, pubic regions, anuses, and female breasts below a point immediately above the top of the areola.
27. “Worker permit” means the permit issued pursuant to the provisions of this chapter allowing a person to work in a massage establishment in a capacity other than as an operator. (Ord. 875 § 2, 2016).
5.46.030 Applicability – Certificate of operation and permits required.
A. Except as otherwise provided herein, it shall be unlawful for any person to engage in, conduct, carry on, or permit the engagement in, conduct of, or carrying on the business or operation of a massage establishment or out call massage services within the city without first obtaining the permits required pursuant to the provisions of this chapter, and complying with all other applicable provisions of the Bell Gardens Municipal Code (code), including, but not limited to, securing the necessary business licenses as required by this code.
1. The provisions of this chapter shall be applicable to all persons and businesses described herein operating as a massage establishment regardless of whether the massage establishment was in operation before or after the effective date of this chapter.
2. Commencing on the effective date of the ordinance codifying this chapter, all permits for a massage establishment are to be issued in accordance with the provisions of this chapter.
3. Certificate of Operation. No massage establishment shall be allowed to operate within the city unless the business first obtains a certificate of operation. No certificate of operation shall be approved until each operator identified in the application has obtained an operator permit.
4. Operator’s Permit. An operator’s permit approved by the city is required pursuant to this chapter for each massage establishment in existence as of the effective date of this chapter and for all new massage establishments established thereafter.
5. Worker Permit. No person shall work as an employee, massage therapist, or massage practitioner in a massage establishment in a capacity other than operator, without first having obtained a worker permit and no operator of a massage establishment shall allow any such person to work without a valid worker permit.
6. Any massage establishment legally operating in the city without a certificate of operation or operator permit on the effective date of the ordinance codifying this chapter shall submit an application for an operator’s permit within 90 calendar days of the effective date of the ordinance codifying this chapter or terminate activities. In the event an operator’s permit is denied by the city for said massage establishment the establishment shall terminate all activities within 30 calendar days of the date of denial by the city of the operator’s permit.
7. Any massage practitioner, massage technician, or other employee not in compliance with the worker permit required under this code shall submit an application in accordance with BGMC 5.46.100 within 90 calendar days of the effective date of the ordinance codifying this chapter.
8. Any massage establishment in existence on the effective date of this chapter which is not in conformance with the land use regulations of BGMC Title 9, Zoning and Planning Regulations (zoning code), Division 2, Land Use Zones and Standards, shall be considered legal nonconforming and may continue operating as legal nonconforming with respect to zoning; provided, that the owner and/or operator obtains a certificate of operation required under BGMC 5.46.060, the permitting requirements set forth under BGMC 5.46.070 and 5.46.100, and complies with the operating standards set forth under BGMC 5.46.170. Notwithstanding the above, a nonconforming use shall be subject to the nonconforming use provisions of the zoning code including, but not limited to, Chapter 9.64 BGMC, Nonconforming Lots, Uses, and Structures. (Ord. 875 § 2, 2016).
5.46.040 CAMTC certificate required.
A. No person shall provide massage services from any location in the city without having been issued a CAMTC certificate, regardless of whether such person has an operator or worker permit or the business has a certificate of operation.
B. No operator of a massage establishment shall hire as an employee or utilize as an independent contractor to provide massage services unless such person has been issued a CAMTC certificate.
C. Any person with a CAMTC certificate who desires to operate a massage establishment or work in a massage establishment in a capacity other than as a massage therapist or massage practitioner must file a permit application for an operator permit or a worker permit. (Ord. 875 § 2, 2016).
5.46.050 Exceptions.
A. Exceptions. The requirements of this chapter shall not apply to the following while engaged in performing the duties of their respective professions:
1. Physicians, surgeons, chiropractors, physical therapists or osteopaths duly licensed to practice their respective professions in the state of California.
2. Any person providing massage services that is employed by a physician, surgeon, chiropractor, osteopath, or physical therapist shall be required to have a valid CAMTC certificate and who works under the adequate supervision of such physician, surgeon, chiropractor, osteopath, or physical therapist as required by state law or regulation if applicable.
3. Acupuncturists who are duly licensed to practice their respective profession in the state of California. The exemption herein only applies if the massage therapy is performed by the licensed acupuncturist professional to the treated portion of the patient’s body. If a duly licensed acupuncturist wishes to provide massage therapy by another individual(s), said individual(s) must obtain and possess a valid CAMTC certificate and the acupuncturist office must obtain an operator’s permit from the city of Bell Gardens in compliance with all codes and the California Acupuncture Board.
4. A registered or licensed vocational nurse working on the premises of, and under direct supervision of, a state licensed physician, surgeon, chiropractor or osteopath. Practical nurses or other persons not licensed by the state of California under Division 2 of the California Business and Professions Code or the CAMTC under California Business and Professions Code Sections 4600 et seq., whether or not employed by physicians, surgeons, chiropractors, osteopaths, acupuncturists, or physical therapists, may not provide massage services or act as a massage technician.
5. Hospitals, nursing homes, sanatoriums, or other health care facilities duly licensed by the state of California.
6. Barbers, beauticians and manicurists who are duly licensed by the state of California while engaging in the practice within the scope of their respective licenses, except that this exemption applies solely for the massaging of the neck, face or scalp of the customer or client of said barber or beautician or in the case of a licensed manicurist, the massaging of the forearm, hands, calves or feet.
7. Coaches and trainers while acting within the scope of their employment at an accredited high school, junior college, college, or university.
8. Trainers of amateur, semi-professional or professional athletes or athletic teams acting within the scope of their role as trainer.
9. Any person licensed to practice any healing art under the provisions of Cal. Bus. & Prof. Code Div. 2 (commencing with Section 500) when engaging in such practice within the scope of such license.
10. Licensed card clubs, as that term is defined in BGMC 5.25.010 and as regulated by Chapter 5.25 BGMC, Card Club License Regulations; however, all card club massage establishments or operators shall comply with all operating standards as set forth under BGMC 5.46.170. (Ord. 875 § 2, 2016).
5.46.060 Certificates of operation.
A. Applications for a certificate of operation shall include the information set forth below:
1. The full name of the applicant;
2. The name under which the business is to be conducted must match the name of the business under which the corresponding business license certificate is issued under this title. No massage establishment shall operate under any business name or conduct business under any designation not specified in the certificate of operation. If the applicant is a corporation, the name shall be exactly as shown on the articles of incorporation;
3. The address of the proposed massage establishment;
4. A legal size copy of the floor plan drawn to scale showing: entrances; exits; windows; interior doors; restrooms; all other separately enclosed rooms with dimensions, including but not limited to closets, storerooms, break rooms, and changing rooms; and location of massage tables and chairs;
5. A description of any other business operated on the same premises;
6. A detailed description of the operation and type of services to be provided by the massage establishment, including other therapies to be provided, proposed days and hours of operation and number of massage therapists and practitioners and employees who will provide services at the establishment;
7. The name of each operator of the massage establishment; and
8. The name and business addresses and phone number of the owner of the premises, if other than the applicant, on which the massage establishment is to be located. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the property that a massage establishment will be located on his or her property.
B. The chief of police shall issue a certificate of operation, unless, after investigation, he or she makes any of the following findings:
1. The massage establishment would not comply with all applicable laws, including, but not limited to, the requirements of this chapter and code, building, fire, zoning, health and safety regulations, and cannot be conditioned to so comply; or
2. Any operator of the massage establishment has failed to obtain an operator permit.
C. A sale or transfer of any reportable interest in a massage establishment, which interest would be required to be reported under subsection (A)(7) of this section in the first instance, shall be reported to the chief of police within 10 calendar days of such sale or transfer. The new operator shall apply for and obtain an operator’s permit within 60 days of the date of reporting or the certificate of operation shall be null and void and subject to revocation in accordance with the provisions of this chapter.
D. A certificate of operation is not transferable to a new business at the same location, to a separate location of the same business, or the same business under different ownership at the same location.
E. Every massage establishment for which a certificate of operation has been granted pursuant to this chapter shall display the certificate in a conspicuous place so it may be readily seen by persons entering the premises.
F. Notwithstanding any other provision of this code to the contrary, where a notice of intent to suspend or revoke, or a notice of suspension or revocation, has been issued regarding a massage establishment, or the business has otherwise been required to close because of suspension or revocation proceedings against the operator, the chief of police shall not process or issue a new application for a certificate of operation for said location unless or until the suspension or revocation proceedings are dismissed or a final determination is made that the current certificate of operation should not be suspended or revoked, or a three-year period has passed since the occurrence of the activity which gave rise to the suspension or revocation or other criminal actions. This provision is not meant to prohibit the issuance of a certificate of operation to a business which initially failed to obtain a certificate of operation without any prior oral or written notification by the city that such was required; provided, that the massage establishment ceases operations immediately upon notification by the city.
G. Notwithstanding any other provision of this code to the contrary, when a massage establishment has been closed due to criminal activity and such decision is final, no new massage establishment may open in such location and no certificate of operation shall be issued for such location for a period of three years from the date of such final determination. For purposes of this section, closure due to criminal activity includes voluntary closure of the business after there have been arrests at the location or other notices relating to criminal activity or notices relating to suspension or revocation proceedings. This provision is not meant to prohibit the issuance of a certificate of operation to a business which initially failed to obtain a certificate of operation without any prior oral or written notification by the city that such was required.
H. The application shall be completed and signed by the owner of the proposed massage establishment, if a sole proprietorship, or, if the applicant is a corporation or partnership, it shall designate one of its officers or general partners as its authorized representative. The authorized representative shall complete and sign all application forms required for an individual applicant under this chapter.
I. Where the applicant for the certificate of operation is not the record owner, as shown on the latest county assessment roll, then upon issuance of the certificate, the city shall send written notice to the property owner advising of the issuance of the certificate and the regulations applicable to the massage establishment and the property pursuant to this chapter; this may be accomplished by including a copy of this chapter with the notice. (Ord. 875 § 2, 2016).
5.46.070 Operator permit.
A. Operator Permit Required. Approval by the city of an operator’s permit is required for any person desiring to operate a massage establishment. Any person desiring an operator’s permit shall submit a written application, signed under penalty of perjury, to the city’s community development department (department) on a form specifically adopted by the department for that purpose. The application shall be accompanied by a nonrefundable filing fee established by resolution of the city council to defray the cost of the investigation required by this chapter.
1. The application shall be completed and signed by the owner of the proposed massage establishment, if a sole proprietorship, or, if the applicant is a corporation or partnership, it shall designate one of its officers or general partners as its authorized representative. The authorized representative shall complete and sign all application forms required for an individual applicant under this chapter.
2. The application and fee required pursuant to this section shall be in addition to any other license, permit or fee required by any other chapter of this code or ordinance hereafter adopted. Only one application fee shall be charged regardless of the number of owners or operators designated in the application.
3. The application for a permit does not authorize the operation of a massage establishment unless and until such permit has been properly granted, nor does the possession of a valid operator’s permit authorize the possessor to perform work for which a CAMTC certificate is required.
4. The application for an operator’s permit shall contain or be accompanied by the following information, which shall be required of each owner of the business whenever required of the “applicant”:
a. The type of ownership of the business (individual, partnership, corporation or otherwise).
b. 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, directors and each stockholder holding more than five percent of the stock of that corporation.
c. If the applicant is a partnership, the application shall set forth the name and residence addresses of each of the partners, including limited partners.
d. If the applicant 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 provisions of this subsection pertaining to corporations shall apply.
e. The true full and precise name under which the massage establishment is to be conducted.
f. The present or proposed address where the massage establishment is to be conducted and all telephone numbers for the massage establishment.
g. A complete current list of the names and residence addresses of all proposed massage technicians, aides, trainees and other employees who are or will be employed in the massage establishment, if known. If not known at the time of submission of the application, the applicant shall provide the required information no later than 10 calendar days prior to opening for business.
h. The name and residence addresses of the proposed operator or manager who will be principally in charge of the operation of the massage establishment.
i. A description of any other business operated on the same premises as the proposed massage establishment, or within the city or the state, which is owned or operated by the owner or operator.
j. The name and address of the owner and lessor of the real property upon or in which the proposed 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 affidavit from the owner of the property acknowledging that a massage establishment will be located on his or her property.
k. The complete business, occupation and employment history for eight years preceding the date of application for the applicant and proposed operator or manager, including, but not limited to, a massage establishment or similar type of business history and experience of the applicant and proposed operator or manager.
l. The complete massage permit history for the applicant and proposed operator or manager; whether such person has ever had any similar type of 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 has been or was ever denied, revoked or suspended; if a vocational or professional license or permit has been or was ever denied, revoked or suspended; if the applicant has ever been required to surrender a permit or license as a result of pending criminal charges or in lieu of said permit or license being suspended or revoked and the reason therefor.
m. All criminal convictions of the applicant, including pleas of nolo contendere, within the last 10 years including those convictions 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.
n. A complete set of fingerprints taken by the police department for each applicant and proposed operator or manager. The applicant shall be responsible for payment of any fingerprinting fee.
o. Two portrait photographs at least two inches by two inches in size taken within the last month for each applicant and proposed operator or manager.
p. Authorization for the city, its agents and employees to seek verification of the information contained in the application.
q. Such other identification and information as the chief of police may reasonably require in order to discover the truth of the matters herein specified and as required to be set forth in the application.
r. A statement in writing and dated by the person providing the information that he or she certifies under penalty of perjury that all information contained in the application is true and correct.
s. All applicable approvals or permits from any county and/or state agency with authority or jurisdiction over the use or building in which the massage establishment is to be located must be submitted to the city prior to the application’s final approval. Any required inspection fees shall be the sole responsibility of the applicant. If the certificates of compliance are not received by the chief of police or his or her designee, within 90 calendar days of the date of filing of the application, said application shall be deemed void. If any land use permit or other entitlement for the use of the property as a massage establishment is required, such permit or use entitlement shall be obtained by the applicant prior to the massage establishment permit becoming effective.
5. Every owner and operator shall also provide the following personal information:
a. The owner or operator’s full, true name and all aliases used;
b. Date and place of birth, California driver’s license, California identification card, Social Security card and resident alien card, if applicable;
c. The current residence address and residence telephone number and all previous residential addresses for a minimum of eight years immediately preceding the present address of the applicant and the dates of residence for each address;
d. Acceptable written proof that the owner and operator is at least 18 years of age;
e. Height, weight, gender and color of hair and eyes.
6. If, during the term of a permit, the permittee has any change in information submitted on the original or renewal application, the permittee shall notify the police department in writing of any such change within 10 business days thereafter.
7. If an owner or operator also desires to act as a massage technician or out call massage technician, he or she shall also satisfy the requirements for the respective permit set forth in this chapter. (Ord. 875 § 2, 2016).
5.46.080 Operator permit term and renewal.
A. Term. Operator permits shall be valid for a period of two years from the date of issuance, unless sooner revoked or abandoned as set forth in this chapter. No permit granted herein shall confer any vested right to any person or business for more than the permit period. All massage operators and technicians subject to this chapter shall comply with the provisions of this chapter as they may be amended hereafter.
B. Renewal. Applications for the renewal of an operator permit shall be filed with the chief of police at least 60 calendar days before the expiration of the permit to be renewed. Temporary permits will not be issued.
1. Any permittee allowing his or her permit to lapse, or which permit expires during a suspension, shall be required to submit a new application and pay the corresponding original application fees.
2. Any person desiring to obtain a renewal of his or her permit shall file a written application under penalty of perjury on the required form with the chief of police, who shall conduct an investigation. The application shall be accompanied by a nonrefundable filing fee established by separate resolution of the city council to defray the cost of the investigation required by this chapter. An applicant shall be required to update the information contained in his or her original permit application and provide any new or additional information as may be reasonably required by the chief of police in order to determine whether the permit should be renewed.
3. The chief of police shall have 60 calendar days to investigate the renewal application and shall render a decision within that time, but no later than the date of expiration of the permit. (Ord. 875 § 2, 2016).
5.46.090 Issuance or denial of operator permit.
A. Application Review, Approval, or Denial. Upon receipt of a complete written application for a permit from the community development department, the chief of police or designee shall conduct an investigation to ascertain whether a permit should be issued as requested. The chief of police or designee shall, within 90 calendar days of receipt of an application, approve, conditionally approve or deny the application. The 90-day period may be extended for up to 30 additional calendar days, if necessary, to complete the investigation. The chief of police at that time may issue such permit as requested, unless he or she makes any of the following findings:
1. The applicant, or any of the officers or directors of the corporation, a partner 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 any provision of law pursuant to which a person is required to register under the provisions of Penal Code Section 290, or conduct in violation of California Penal Code Sections 266h, 266i, 314, 315, 316, 318, subsection (a), (b), (d) or (h) of Penal Code Section 647, Penal Code Section 288(a) or convicted of an attempt to commit, or conspiracy to commit, any of the above-mentioned offenses, or any other crime involving dishonesty, fraud, deceit, or moral turpitude or when the prosecution accepted a plea of guilty or nolo contendere to a charge of a violation of California Penal Code Sections 415, 602 or any lesser included or related offense, in satisfaction of, or as a substitute for, any of the previously listed crimes, or any crime committed while engaged in the ownership of a massage establishment or the practice of massage;
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 subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Sections 11225 through 11235 of the California Penal Code, or any similar provisions of law in a jurisdiction outside the state of California;
e. Committed an act in another jurisdiction which, if committed in this state, would have been a violation of law and which, if done by a permittee under this chapter, would be grounds for denial, suspension or revocation of the permit;
f. Has had a massage operator, CAMTC certificate, work permit or other similar license or permit denied, suspended or revoked for cause by the city, any state, local agency or other licensing authority, or has had to surrender a permit or license as a result of pending criminal charges or in lieu of said permit or license being suspended or revoked;
g. Has engaged in conduct which would constitute grounds for suspension or revocation under BGMC 5.46.120(B);
h. The applicant has made a false, misleading or fraudulent statement or omission of fact to the city in the permit application process;
i. The application does not contain all of the information required by BGMC 5.46.070(A)(4);
j. The applicant is not at least 18 years of age;
k. The massage establishment which is the subject of an operator’s permit as proposed does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards;
l. The required fee(s) has not been paid or all other requirements of this chapter have not been satisfied in the time specified.
2. The chief of police, upon completion of the investigation, determines that the applicant does not fulfill the requirements as set forth in this chapter, the chief of police shall deny said application by written notice to the applicant.
3. The chief of police determines that granting an operator permit would cause the total number of massage establishments within the city to exceed the number allowed under BGMC 5.46.170(A)(1)(b).
B. An applicant denied an operator permit shall have the right of appeal as set forth in BGMC 5.46.120(E).
C. If the application is denied for failure to comply with subsection (A)(1) or (A)(2) of this section, the applicant may not reapply for a period of 24 months from the date the application was denied. (Ord. 875 § 2, 2016).
5.46.100 Worker permit required.
A. Approval by the city of a worker permit is required for any person employed in a massage establishment. Any person desiring a worker permit shall submit a written application, signed under penalty of perjury, to the city’s community development department (department) on a form specifically adopted by the department for that purpose. The application shall be accompanied by a nonrefundable filing fee established by resolution of the city council to defray the cost of the investigation required by this chapter.
1. Non-CAMTC Certified Employee Permit Issuance.
a. Applications for a non-CAMTC permit shall include the following:
i. The full true name of the applicant;
ii. A complete statement listing and explaining any and all aliases and fictitious names used by the applicant within the 10 years immediately preceding the application;
iii. The current residence and business address and telephone numbers of the applicant;
iv. A list of all previous residential and business addresses for a minimum of 10 years immediately preceding the present address of the applicant and the dates of residence for each address;
v. The applicant’s place of birth, and original documentation to verify both the applicant’s identity and employment authorization (if applicable), as listed under 8 USC 1324a(b)(1) and 8 CFR 274a.2(b)(1). Documentation to satisfy this requirement may include, but is not limited to, a California driver’s license, California identification card, Social Security card, resident alien (“green”) card, United States passport (unexpired or expired), unexpired foreign passport that contains a temporary I-551 stamp, or an unexpired employment authorization document issued by the United States government in compliance with 8 CFR 274a.2(b)(1)(v)(A);
vi. The history of the applicant as to any similar occupation within 10 years immediately preceding the filing of the application. Such information shall include, but not be limited to, the names and addresses of any other massage establishments or similar businesses the applicant has owned, managed, provided massage technician services or provided any other services at, or worked at, whether the applicant has had a permit or license to operate, manage, provide massage technician services or any other services or work at a massage establishment denied, revoked or suspended in any jurisdiction; the reasons for any such denial, revocation or suspension; and the business, activity or occupation the applicant engaged in subsequent to such denial, revocation or suspension;
vii. All criminal convictions within the last 10 years, excluding minor traffic violations, and the date and place of each such conviction and reason therefor;
viii. A complete set of the applicant’s fingerprints taken by the police department. The applicant shall be responsible for payment of any fingerprinting fee;
ix. The name and address of the establishment where the applicant will be working and, if the applicant is claiming to be an employee of the establishment, proof of bona fide employment by the massage establishment; and
x. Such other reasonable identification and information as the chief of police may require in order to discover the truth of the matter specified as required to be set forth in the application.
b. The chief of police shall issue a worker permit as requested, unless after investigation he or she makes any of the following findings:
i. The applicant has failed to provide information, documentation and assurances required by this chapter or by the chief of police; has failed to reveal any fact material to qualification; or has supplied information that is untrue or misleading as to a material fact pertaining to the qualification criteria; or
ii. The applicant is a person who has engaged in disqualifying conduct; or
iii. There is substantial evidence that the applicant has engaged in disqualifying conduct, even if there is no conviction for such conduct; or
iv. The applicant has violated any provision of this chapter, or any similar ordinance, law, rule, or regulation of any other public agency which regulates non-CAMTC certified employees of a massage establishment. This provision is not meant to prohibit the issuance of a permit to a person who initially failed to obtain a permit without any prior oral or written notification by the city that such permit was needed; provided, that the applicant cease operations upon notification; or
v. The criminal history background check report demonstrates that the applicant has made any false, misleading or fraudulent statement of material fact in the permit application or in any report or record required to be filed therewith, or discloses any disqualifying conduct; or
vi. The applicant is not at least 18 years of age; or
vii. The applicant is delinquent in paying city fees or penalties owed in relation to any permit issued pursuant to this chapter.
c. Permits issued pursuant to this section shall remain in effect, unless revoked, for a period of three years. Applications for the renewal of a permit shall be filed on a form supplied by the city with the chief of police. Temporary permits shall not be issued and expired permits are not valid, unless the permittee has a written receipt showing that the renewal application was filed at least 30 days prior to expiration, without action having been taken by the chief of police. Any permittee allowing his or her permit to lapse shall be required to submit a new application and pay the corresponding original application fees. Applications shall be signed under penalty of perjury and shall be accompanied by a nonrefundable filing fee established by separate resolution of the city council to help defray the cost of the investigation required by this chapter. An applicant shall be required to update the information contained in his/her original permit application and provide any new and/or additional information as may be reasonably required by the chief of police in order to determine whether said permit should be renewed, including all information required by subsection (A)(1)(a) of this section. Failure to provide this documentation shall be grounds for nonrenewal of the permit.
2. CAMTC Certificate Holder Permit Issuance.
a. Any person who holds a valid CAMTC certificate as a massage therapist or a massage practitioner shall only be required to provide the following information on a form that includes the statements set forth in this section, along with a fee in an amount set by resolution of the city council:
i. The full true name of the applicant;
ii. The current residence and business address and telephone numbers of the applicant;
iii. The name and address of the massage establishment for which the operator or work permit is sought; and
iv. A copy of the applicant’s CAMTC certificate and CAMTC identification card.
b. The work permit shall automatically issue upon verification of the CAMTC certificate by the police department. No background check shall be required.
c. Renewals shall be required, but such renewals shall be automatic and no fees shall be required as long as the applicant maintains a valid CAMTC certificate.
3. All applicants for work permits shall have their pictures taken by the police department.
4. Every person to whom a work permit has been granted pursuant to this section shall be issued an identification badge by the police department which shall contain the person’s name, photograph, expiration date and any other information deemed necessary by the chief of police. The badge shall be worn so as to be readily visible at all times while on the premises of the massage establishment.
5. Permits issued pursuant to this section may not be assigned or transferred. (Ord. 875 § 2, 2016).
5.46.110 Nonassignability.
An operator permit or worker permit shall not 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. (Ord. 875 § 2, 2016).
5.46.120 Suspension, revocation, denial and appeal.
A. Failure to Comply. Failure of a permittee to comply with any requirement imposed by this chapter or any other conditions imposed pursuant to the permit shall be grounds for nonrenewal, suspension or revocation of the permit.
B. Suspension, Nonrenewal or Revocation of Permit. The chief of police may suspend, revoke or refuse to renew any permit issued under this chapter whenever he or she determines that any of the following has occurred:
1. The permittee, or an employee or independent contractor working on the premises, is conducting operations in a manner contrary to the provisions of this code;
2. The permittee, or an employee or independent contractor working on the premises, is conducting operations in a manner which constitutes a public nuisance;
3. The permittee, or an employee or independent contractor working on the premises, is conducting operations in a manner which is detrimental to the health, safety or welfare of the city or its inhabitants;
4. There is substantial evidence of prostitution;
5. The permittee, or any employee or independent contractor working on the premises, has engaged in disqualifying conduct; or
6. The chief of police makes any of the findings that would have justified denying the application in the first instance.
C. Notice. When the chief of police concludes that grounds for denial, suspension, revocation or nonrenewal of a permit exist, the chief of police shall serve the applicant or permit holder, either personally or by certified mail to the address listed on the application, with a notice of denial, nonrenewal or notice of intent to suspend or revoke a permit (the “notice”). Where all massage activity is required to cease, notice shall also be served on the owner of the property if different from the operator or certificate holder. This notice shall contain the following:
1. Reasons for the proposed action;
2. Effective date of the decision;
3. The right of the applicant or permit holder to appeal the decision to the city council;
4. That the chief of police’s decision will be final if no appeal is filed by certified mail within the time stated; and
5. The date upon which the permit shall terminate which shall be 15 days from the date that the notice was mailed by certified mail, unless an appeal is filed per subsection (E) of this section.
D. Effects of Suspension or Revocation of Permits.
1. Upon issuance of a notice of suspension or revocation of a certificate of operation, all massage activity at the massage establishment shall cease, and no activity for which the certificate of operation is required shall be conducted while any appeal may be pending.
2. Upon issuance of a notice of suspension or revocation of an operator permit, the operator must cease all work at the massage establishment. If there is no other person who has an operator permit which is not the subject of a suspension or revocation proceeding, then all massage activity at the massage establishment shall also cease, and no massage activity shall be conducted while any appeal may be pending.
3. Upon issuance of a notice of suspension or revocation of a work permit, all work activity by the subject employee shall cease, and no activity for which the permit is required shall be conducted while any appeal may be pending.
E. Appeal. The appellant shall have the right to appeal the decision of the chief of police to the city manager or designee. For purposes of this section, references to the city manager shall also include city manager’s designee. The request for appeal shall be personally delivered or sent by certified mail to the community development department within 15 calendar days of the mailing date of the notice of denial, suspension, revocation, or nonrenewal.
1. In the event an appeal is timely filed, the denial, suspension, revocation, or nonrenewal shall not become effective until a final decision has been rendered by the city manager. If no appeal is filed, the suspension or revocation shall become effective upon the expiration of the period for filing appeals.
2. The city manager shall set a date, time and place for a hearing on appeal and shall notify the appellant of such date, time and place of the hearing. Said notice shall be sent by certified mail with proof of service attached, to the appellant, applicant or permittee at least 10 calendar days prior to the date of the hearing, addressed to the address listed on the respective application or the address given in the notice of appeal. The appellant shall be entitled to notice of the basis for the proposed action, a copy of the documents upon which the notice was based and will have the opportunity to present contrary evidence at the hearing.
3. The city manager may uphold, deny, or modify the appeal at the hearing pursuant to the following rules of procedure:
a. Oral evidence shall be taken only under oath or affirmation. The city manager 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 city council may also 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.
d. 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.
e. 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.
4. The appellant shall have the burden of proving that he or she meets the requirements for issuing the permit in the first instance. The chief of police shall have the burden of proving that grounds exist for revoking or failing to renew a permit.
5. Based upon the evidence presented at the hearing, the city manager shall determine whether the decision by the chief of police should be affirmed, modified or reversed.
6. The city manager’s decision shall be communicated in writing to the appellant within 21 calendar days after the close of the hearing and submission of the matter to the city manager for decision. The city manager’s decision shall state whether the decision of the chief of police is affirmed, modified or reversed and shall state the reasons therefor. The city manager’s decision shall also state that it is final and conclusive, that judicial review may be sought therefrom pursuant to Code of Civil Procedure Section 1094.5, and that any action filed in the superior court shall be filed within 90 days following the city manager’s notice pursuant to Code of Civil Procedure Section 1094.6. (Ord. 875 § 2, 2016).
5.46.130 Notices.
A. All notices required to be given pursuant to this chapter shall be served on the responsible party (i.e., permittee, applicant or appellant) either by personal delivery or by certified mail in a sealed envelope postage prepaid addressed to such responsible party as the name and address appear in the most recent application on file with the city. Service by mail shall be deemed to have been completed on the date deposited in the mail.
B. In all cases where the certificate of operation holder is not the property owner, notices shall also be sent to the property owner of record where the notice relates to possible closure of the business due to suspension or revocation. (Ord. 875 § 2, 2016).
5.46.140 New application after denial or revocation of permit.
A person may not apply for a permit pursuant to this chapter within 24 months from the denial or revocation of such permit. (Ord. 875 § 2, 2016).
5.46.150 Surrender of permit.
Any person to whom a permit has been issued pursuant to this chapter shall immediately surrender his or her permit to the chief of police upon its suspension or revocation. (Ord. 875 § 2, 2016).
5.46.160 Fees.
The city council shall establish by resolution, and from time to time may amend, the fees for the administration of this chapter. Fees required by this chapter shall be in addition to any other fees that may be required under any other chapter of this code. (Ord. 875 § 2, 2016).
5.46.170 Operating standards.
A. All massage establishments shall be subject to and comply with the following operational requirements:
1. Development Restrictions.
a. A massage establishment may operate only in zones for which such use is permitted pursuant to BGMC Title 9, Zoning and Planning Regulations.
b. A maximum of three massage establishments shall be permitted to operate in the city at any one time. The maximum number of massage establishments permitted to operate at any one time shall include those existing massage establishments in operation as of the effective date of the ordinance codifying this chapter. An operator’s permit shall be approved by the city only after determining that the maximum number of massage establishments established by this chapter would not be exceeded.
c. Massage establishments shall be carried on in a structure which is located in a zoning district which permits such use. When a massage establishment is newly constructed, three sets of plans shall be submitted to the city and the county health department for approval and shall be accompanied by the appropriate plan check fee(s).
2. Hours and Conditions of Operation.
a. Massage establishment hours of operations shall be limited to the hours between 7:00 a.m. and 8:00 p.m. No massage establishment shall operate nor shall any massage be administered in any massage establishment between the hours of 8:00 p.m. and 7:00 a.m. The hours of operation shall be posted in the front window and clearly visible from the outside. The hours of operation set forth under this section shall not apply to massage therapy services or establishments located within a licensed card club in the city. A massage begun any time before 8:00 p.m. must nevertheless terminate at 8:00 p.m.
b. The operator or manager must advise the city, in writing, at the time of submission of the application for a massage establishment permit of the hours of operation within the times set forth above. The operator or manager shall notify the city, in writing, at least 30 calendar days prior to the date of the effective change, of any changes in the hours of operation. All customers, patrons and visitors shall be excluded from the massage establishment during these hours and be advised of these hours. The hours of operation must be displayed in a conspicuous public place in the lobby within the massage establishment and in the front window clearly visible from the outside.
c. All persons or businesses providing massage to the public for any form of compensation shall apply for and obtain a business license pursuant to Chapter 5.02 BGMC, Business Licenses Generally.
d. No person granted an operator’s permit pursuant to this chapter shall use any name or conduct business under any name or designation not specified in his or her permit.
e. No massage establishment shall employ a massage technician in that capacity who does not possess a current and valid CAMTC certification and work permit or any non-massage technician who does not possess a current and valid work permit.
f. Every operator or manager shall keep a record of the dates and hours of each treatment or service, the name and address of the patron, the name of technician administering such service and a description of the treatment or service rendered. These records shall be prepared prior to administering any massage or treatment and shall be retained for a period of six months after service.
g. No massage establishment shall place, publish or distribute or cause to be placed, published or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers or clients that any service is available other than those services described in this chapter and posted on the premises as required by this chapter, nor shall any massage establishment employ language in the text of any advertising that would reasonably suggest to a prospective patron that any service is available other than those services described in this chapter and posted on the premises as required by this chapter.
h. No person(s) other than the owner, operator, operator’s employees, holders of valid CAMTC certificates and customers will be allowed beyond the front lobby, which lobby shall be located directly inside the front door entrance, during the hours of operation. Any other person(s) found beyond the first interior door leading to the inside of the business including, but not limited to, hallways, massage rooms, reception or business offices or lounge area will be in violation of this section. Entry doors to any room shall not be obstructed by any means.
i. The massage technician shall wear a photo identification card prepared and issued by the city at all times when present in the massage establishment. Such identification shall be provided to the chief of police upon demand. The identification card shall be worn on outer clothing with the photo side facing out. If a massage technician changes his or her business address, he or she shall, prior to such change, obtain from the chief of police a new photo identification card and advise the police department, in writing, of the new business address.
j. While on duty, the massage technician shall not use any name or designation or conduct business under any other name or designation than the name specified in his or her permit and photo identification card.
k. No massage establishment may discriminate or exclude patrons on the basis of race, sex, religion, age or handicap.
l. Proof of compliance with all applicable provisions of this code shall be provided to any city official charged with enforcing or administering the provisions of this chapter.
3. Posting Requirements.
a. Any signs shall be in conformance with the current sign ordinances of the city. Each operator or manager shall post and maintain, adjacent to the main entrance and the front of the business, a legible sign identifying the premises as a massage establishment.
b. The operator’s permit required pursuant to this chapter shall be displayed in a conspicuous public place in the lobby of the massage establishment.
c. The operator or manager shall ensure that the CAMTC certificate for each on duty massage technician is conspicuously displayed in a public place in the lobby and that each massage technician is wearing the identification badge required by BGMC 5.46.100(A)(4) at all times when working in the massage establishment. Such identification shall be provided to a city official upon demand.
d. Each operator or manager shall post and maintain a list of services available and the cost of such services in the lobby of the massage establishment in a conspicuous public place and in any other location on the premises as the operator or manager deems appropriate. No operator or manager shall permit, and no massage technician shall offer or perform, any service other than those posted.
e. The following notice shall be posted in a conspicuous place in the massage establishment that is easily visible to any person entering the premises and in each massage room:
NOTICE TO ALL PATRONS
THIS MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS ARE NOT LOCKED FOR YOUR SAFETY AND PROTECTION. THIS ESTABLISHMENT IS SUBJECT TO INSPECTION BY THE BELL GARDENS POLICE DEPARTMENT WITHOUT PRIOR NOTICE.
The language for said notice set forth above may be amended from time to time by the chief of police. Every owner, operator or manager required to post such notice shall be required to pay for the cost of any and all notices required by this section.
4. Instruments, Equipment, and Personnel.
a. The operator of each massage establishment shall file a statement with the community development department designating the person or persons with power to act as a manager. The operator or on duty manager shall post, on a daily basis, the name and photograph (a minimum size of four inches by six inches) of each on duty manager and each on duty massage 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.
b. No massage establishment shall open for business without having at least one massage technician who holds a current valid CAMTC certificate and work permit for that specific massage establishment. There shall be at least one massage technician who holds a current valid CAMTC certificate on the premises, and on duty, at all times when the establishment is open.
c. All employees, including massage technicians, shall, at all times while on the business premises, wear clean clothing that is not transparent, see-through or which substantially exposes undergarments, breasts, buttocks or genitals or any manner that constitutes a violation of Section 314 of the Penal Code. Swim attire is not permitted unless providing a water-based massage modality approved by Chapter 10.5 of the Business and Professions Code.
d. Massage technicians shall display the CAMTC certificate visibly on the premises at the massage establishment at all times during business hours.
e. The operator or manager shall maintain a register of all employees. The employee register shall be maintained on the premises for a minimum period of two years following an employee’s termination. The operator or manager shall make the employee register immediately available for inspection upon demand of a representative of the police department at all reasonable times. The employee register shall include, but not be limited to, the following information:
i. The name, nicknames or aliases used by an employee;
ii. The employee’s home address and relevant phone numbers (including, but not limited to, home, cellular and pager numbers);
iii. The employee’s age, date of birth, gender, height, weight, color of hair and eyes;
iv. The employee’s Social Security number;
v. The date of employment and termination, if any;
vi. The massage technician’s CAMTC certification information; and
vii. The duties of each employee.
f. A massage table shall be provided in each massage room and all massages shall be performed on the massage table. The tables should have a minimum height of 18 inches. Two-inch thick foam pads with a maximum width of four feet may be used on a massage table and must be covered with durable, washable plastic or other waterproof material acceptable to the county health department. Beds, floor mattresses and waterbeds shall not be permitted on the premises. Each operator or manager shall provide and maintain on the premises adequate equipment for disinfecting and sterilizing instruments used in massage.
g. An operator or manager shall be responsible for the conduct of all employees while they are on the massage establishment premises. Any act or omission of any employee or independent contractor constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator or manager for purposes of determining whether the operator’s license shall be revoked, suspended, denied or renewed.
5. Prohibited Conduct.
a. The use or possession of adult oriented merchandise in or on any part of a massage establishment is prohibited.
b. No storage of condoms or spermicides shall be permitted within the massage establishment.
c. No electrical, mechanical or artificial device shall be used by any massage establishment staff for audio and/or video recording or for monitoring the performance of a massage, or the conversation or other sounds in the massage rooms or restrooms.
d. No person or persons shall be allowed to reside, dwell, occupy or live inside the massage establishment at any time. Living quarters, if any, shall be completely separate from the massage establishment.
e. No operator or manager shall employ any person as a massage technician who does not have a CAMTC certificate in good standing and who does not have a valid work permit. Every owner, operator, or manager shall report to the chief of police or designee 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 calendar days of the date of hire or termination. The operator or manager shall deliver notice of the termination of any massage technician no longer employed by the operator or manager to the chief of police or his designee within five calendar days of termination.
f. It is unlawful for owners or employees of massage establishments or massage technicians to engage in, or allow patrons or guests of the establishment to engage in, any of the following activities:
i. Sexual activities upon the premises of the massage establishment or the out call massage location.
ii. Exposure of specified anatomical areas in the presence of any client, patron, customer, or guest.
iii. Intentional physical contact with specified anatomical areas of any customer, patron or guest.
g. A massage technician shall consent to, and shall not prevent, delay or interfere with, an inspection of the massage establishment by the city’s code enforcement division, fire department, police department and the county health department for the purpose of determining that the provisions of this chapter or other applicable laws or regulations are met. The massage technician shall consent to the lawful inspection of the occupied massage rooms by the police department for the purpose of determining that the provisions of this chapter are met.
h. Except to the extent required, in writing, by a state-licensed medical practitioner, no massage technician shall massage or allow a massage technician aide or employee to massage the genitals or anal area of any patron. Nor shall any massage technician, massage technician aide or employee solicit or allow a patron to touch or massage in any manner the genitals, gluteal fold, or anal area of a massage technician, massage technician aide or employee, or the breasts of any female massage technician, massage technician aide or employee. A massage shall not be given and no patron shall be in the presence of a massage technician, aide, operator, manager or other employee of a massage establishment unless the patron’s genitals, anus, and, if a female patron, the female patron’s breasts, are fully covered by a nontransparent covering.
i. No massage establishment shall operate as a school of massage, or use the same facilities as that of a school of massage.
j. Common use of towels or linen shall not be permitted. Towels and linen shall be laundered or changed promptly after each use. Separate enclosed cabinets shall be provided for the storage of clean and soiled linen and shall be plainly marked “clean linen” and “soiled linen” and shall have doors or covers.
k. Alcoholic Beverages and Drugs. No person shall enter, be in or on, or remain in or on any part of a massage establishment while in possession of, consuming, using or under the influence of any alcoholic beverage or controlled substance. The operator or manager shall be responsible to ensure that no such person shall enter or remain upon the premises of the massage establishment. Service of alcoholic beverages is prohibited.
l. At all times, the operator, manager and employees or independent contractors shall comply with all provisions of this chapter, applicable provisions of this code, and state and federal law.
B. All massage establishments shall comply with the following facility requirements:
1. All exterior doors (except back or rear exterior doors used only for employee entrance to and exit from the massage establishment) shall remain unlocked during business hours unless the massage establishment owner is a sole proprietor with no employees or independent contractors. All interior doors (other than bathroom doors), including but not limited to all doors leading to customer areas, the front reception, hallway or front exterior doors, shall not have any locking mechanisms. A door leading from the lobby area to customer areas, if any, shall not have any locking mechanism or be capable of being locked or blocked to prevent entry, in any manner.
2. All massage and dressing rooms shall be screened off by curtains, draw drapes, or, in the alternative, swinging doors. No massage may be given within any massage room within a massage establishment which is fitted with a door capable of being locked.
3. Minimum lighting for a massage establishment shall be provided in accordance with Title 24 of the California Building Code or successor provision or provisions. The lighting in each massage room shall be not less than 210 lumens for every 150 square feet of space and shall be activated at all times while the patron is in a massage room. No strobe, flashing lights or dimmer switches shall be used. No colored lights shall be used nor shall any coverings be used which change the color of the primary light source.
4. A minimum of one toilet and one separate wash basin shall be provided for patrons in each massage establishment, which basin shall provide soap or detergent and hot and cold running water at all times and shall be located within close proximity to the massage rooms. A permanently installed soap dispenser, filled with soap, and a single service towel dispenser shall be provided at the restroom washbasin. Bar soaps shall not be used. A trash receptacle shall be provided in each toilet room.
5. A minimum of one dressing room containing a separate locker capable of being locked shall be provided for patrons to be served at the massage establishment. If a shower is included in the premises or otherwise required as a condition of approval, the shower facility shall be equipped with soap or detergent and hot and cold running water at all times and shall be located within close proximity to the massage rooms. Bar soaps shall not be used.
6. 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 with a disinfectant approved by the county health department, as needed, but at least once each day the premises are open. All facilities for the massage establishment must be in good repair and shall be thoroughly cleaned and sanitized at least on a daily basis when the business is in operation. All walls, floors and ceilings of each restroom and shower area shall be constructed with materials that are smooth and easily cleanable. No carpeting shall be installed in any of these specified areas.
7. One front door that enters into the lobby or other waiting room shall be provided for customer use. All customers and any other persons other than employees shall be required to enter and exit through the front door of the establishment.
8. Massage clients must wear some form of clothing or draping which ensures coverage of the genital area, anus and female breasts. No common use of such coverings shall be permitted and reuse is specifically prohibited unless adequately cleaned prior to its reuse.
9. All massage establishments must comply with all state and federal laws and regulations in connection with customers with disabilities. (Ord. 875 § 2, 2016).
5.46.180 Inspections and investigations.
A. Inspections. The chief of police and the county health department, city’s code enforcement division, and/or county fire department or their authorized representatives shall have the right to enter the massage establishment at any time during business hours for the purpose of making reasonable unscheduled inspections to observe and enforce compliance with applicable regulations, laws, and provisions of this chapter.
1. During an inspection, the police department may also verify the identity of all employees or compliance with any portion of this code.
2. An operator, manager, their agents, servants or employees commits a punishable offense if he or she refuses to permit, delays or interferes with a lawful inspection of the premises by a representative of the police department at any time it is occupied or open for business.
B. Criminal Investigations. Criminal investigations may be conducted as directed by the chief of police. The police department may inspect the occupied massage rooms for the purpose of determining whether any unlawful activity prohibited by this chapter is taking place, upon reasonable suspicion that such activity is taking place based on the officer’s observations, or pursuant to a valid search warrant. (Ord. 875 § 2, 2016).
5.46.190 Change in or transfer of ownership of business.
A. Conforming Establishments. Ownership of any establishment that is in conformance with this chapter may be transferred or changed as set forth herein.
1. Sole Proprietorships. Sole proprietors granted an operator’s permit hereunder may make application to the chief of police, together with the fee established by the city council therefor, to amend the original application providing all information as required for sole proprietors in the first instance and, upon approval thereof, the transfer of ownership may occur.
2. Partnerships. One or more proposed partners in a partnership granted an operator’s permit hereunder may make application to the chief of police, together with the fee established by the city council therefor, to amend the original application providing all information as required for partnerships in the first instance and, upon approval thereof, the transfer of the interests of one or more partners to the proposed partner or partners may occur. 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 chief of police, shall be placed in the name of the surviving partners.
3. Corporations. 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; provided, however, the proposed transferee may submit to the chief of police, together with a fee established by the city council, an application to amend the original application providing all information as required for stockholders in the first instance, and, upon approval thereof, the transfer may then occur.
B. Nonconforming Establishments. Notwithstanding Chapter 9.64 BGMC, ownership of any establishment made nonconforming under this chapter shall not be transferred, sold, or conveyed to a subsequent owner or operator and said nonconforming status shall immediately terminate once the massage establishment is no longer owned by the owner or operator of record at the time that the massage establishment became nonconforming. (Ord. 875 § 2, 2016).
5.46.200 Change of location or name.
A. Reporting Requirements. Every permittee shall report immediately to the police department any and all changes of name or designation under which the business is to be conducted, and all changes of address or telephone numbers of the massage establishment. A change of location of the massage establishment may be approved by the chief of police provided there is compliance with all applicable regulations of the city and the new location is zoned for such a use.
B. Name of Business. No permittee shall operate, conduct, manage, engage in, or carry on the business of a massage establishment under any name other than the person’s name and the name of the massage establishment specified in the permit.
C. Facility Expansions. Any application for an expansion of a building or other place of business of a massage establishment shall require inspection(s) and shall comply with the provisions and regulations of this chapter and all other city ordinances including, but not limited to, this title, BGMC Title 9, Zoning and Planning Regulations, and all building, safety and occupancy standards. (Ord. 875 § 2, 2016).
5.46.210 Violation and penalty.
A. Violations. Any person who violates any provision of this chapter is guilty of a misdemeanor. Any massage establishment operated, conducted or maintained contrary to the provisions of this chapter shall be, and the same is 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.
B. Penalties. The penalties set forth herein are cumulative and in addition to all other remedies, violations and penalties set forth in this chapter, or in any other ordinances, laws, rules or regulations of the city of Bell Gardens, Los Angeles County and the state of California.
C. Infractions. Any person who operates a massage establishment in a manner which violates, causes or permits another person to violate any provision of this chapter is guilty of an infraction unless otherwise provided.
D. Separate Offenses for Each Day. Any violator shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued, permitted, or caused by such violator and shall be punished accordingly.
E. Public Nuisance. In addition to the penalties provided in this section, any use or condition caused or permitted to exist in violation of any of the provisions of this chapter shall be and is declared to be a public nuisance and may be subject to administrative remedies authorized under the law. In addition, a nuisance may be abated as such by the city after appropriate notice and procedures pursuant to this chapter.
F. Additional Remedy. Any violation of any provision of this chapter shall be and is declared to be contrary to the public interest and shall, at the discretion of the city, create a cause of action for injunctive relief.
G. Conviction. Any person convicted of an infraction under the provisions of this section shall be punishable by a fine to the maximum permitted under state law. Any violation beyond the second conviction within a one-year period may be charged by the city attorney or district attorney as a misdemeanor, and the penalty for conviction shall be punishable by a fine or imprisonment to the maximum permitted under state law.
H. Liability for Expenses. In addition to the punishment provided by law, a violator is liable for such costs, expenses, and disbursements paid or incurred by the city or any of its contractors in correction and abatement of the violation. Reinspection fees to ascertain compliance with previously noticed or cited violations may be charged, if adopted in the city’s fee schedule resolution. The inspection official shall give the owner or other responsible party of such affected premises a written notice showing the itemized cost of such chargeable service and requesting payment thereof. Should the bill not be paid in the required time, the charges shall be placed as a lien against the property. (Ord. 875 § 2, 2016).