CHAPTER 17
HEALTH AND SANITATION*

Sections:

ARTICLE I. PUBLIC HEALTH CODE

17.1    Adoption; where filed.

17.1-2    References to county—Health officer.

17.2    Amendments.

17.2-1    Definitions.

17.2-2    Grading and letter grade card.

17.2-3    Inspection score card.

17.2-4    Notice of closure.

17.2-5    Routine inspection.

17.2-6    Posting requirements—Penalty for noncompliance—Documents available for public review.

17.2-7    Letter grade card and inspection score card—Period of validity.

17.2-8    Public health permit suspension or revocation—Notice of closure.

17.2-9    Food handler’s training certification.

17.2-10    Violation.

17.2-11    Severability.

17.3    Definitions.

17.4    Prohibition on the manufacture, sale or distribution of products utilizing ozone-depleting compounds.

17.5    Prohibition on the use of ozone-depleting compounds in building insulation.

17.6    Disposal of ozone-depleting compounds contained in building insulation.

17.7    Recycling of ozone-depleting compounds used as coolants in refrigeration and/or air conditioning units.

17.8    Restriction on sale of ozone-depleting compounds used as coolants in refrigeration and/or air conditioning units.

17.9    Disposal of refrigeration or air conditioning unit or system.

17.10    Permit required for testing fire extinguishing systems or units which utilize halon.

17.11    Reclamation of halons from portable fire extinguishing systems or units.

17.12    Exemption.

17.12-1    Enforcement.

17.12-2    Severability.

ARTICLE II. MASSAGE ESTABLISHMENTS

17.13    Findings and purpose.

17.14    Definitions.

17.15    Permits required.

17.16    Exceptions.

17.17    Operator’s permit—Application.

17.18    Operator examination required.

17.19    Operator’s permit—Issuance or denial.

17.20    Operating requirements—General conditions.

17.21    Operating requirements—Facilities.

17.22    Operating requirements—Operations.

17.23    Inspections.

17.24    Operator’s permit—Nonassignability.

17.25    Operator’s permit—Change in ownership of business.

17.26    Operator’s permit—Change of location or name.

17.27    Applicability to existing massage establishments.

17.28    CAMTC certificate required.

17.29    Reserved.

17.30    Reserved.

17.31    Massage practice—General conditions.

17.32    Operator permit term and removal.

17.33    Suspension, revocation, denial and appeal.

17.34    Notice.

17.35    Appeal.

17.36    New application after denial or revocation of permit.

17.37    Surrender of permit.

17.38    Fees.

17.39    Violation and penalty.

ARTICLE III. DEEMED APPROVED MASSAGE ESTABLISHMENTS

17.40    Purpose and scope.

17.41    Definitions.

17.42    Performance standards and deemed approved massage establishments.

17.43    Deemed approved status procedure.

17.44    Procedure for consideration of violations to performance standards.

17.45    Violations and penalties.

17.46    Enforcement.

ARTICLE IV. SWIMMING POOL FENCES

17.48—17.49    Repealed by Ordinance No. 1983.

ARTICLE V. SMOKING—PROHIBITED

17.50    Findings and purpose.

17.51    Authority.

17.52    Definitions.

17.53    Application to city-owned vehicles, buildings, and facilities.

17.54    Prohibition of smoking in public parks.

17.55    Prohibition of mobile vending of cigarettes

17.56    Prohibition of smoking in public places.

17.56-1    Smoking prohibited on public sidewalks.

17.57    Reasonable smoking distance required.

17.58    Requirement of vendor-assisted sales.

17.58-1    Purchaser identification.

17.58-2    Prohibition of smoking in the workplace.

17.58-3    Posting of signs.

 

17.58-4    Structural modifications.

17.58-5    Enforcement.

17.58-6    Violations and penalty.

17.58-7    Nonretaliation.

17.58-8    Exemptions.

ARTICLE VI. HAZARDOUS MATERIALS, SOUTH PASADENA CERTIFIED UNIFIED PROGRAM AGENCY

17.59    South Pasadena Certified Unified Program Agency.

17.60    Definitions.

17.61    Hazardous materials list.

17.62    Filing of a hazardous material disclosure form.

17.63    Disclosure form.

17.64    Exemptions from disclosure.

17.65    Trade secrets.

17.66    Enforcement and penalties.

17.67    Fees.

17.70    Cleanup by fire department—Costs.

ARTICLE VII. RAT CONTROL

17.71    “Ratproofing” defined.

17.72    Interference with or disobedience to health officer.

17.73    Rat, etc., breeding conditions; rat harborage.

17.74    Notice to ratproof buildings or portions thereof.

17.75    Ratproofing of buildings used for grain storage, handling, etc.

17.76    Ratproofing of slaughterhouses, bakeries, etc.

ARTICLE VIII. SMOKE-FREE HOUSING

17.80    Purpose.

17.81    Definitions.

17.82    Smoking prohibited in common areas.

17.83    Nonsmoking buffer zones.

17.84    Smoking restrictions in new units of multi-unit residences.

17.85    Nonsmoking designations for existing units of a common interest complex/mix-use.

17.86    Nonsmoking designations for existing units of a rental complex.

17.87    Designation of nonsmoking units.

17.88    Lease terms for all new and existing units in rental complexes.

17.89    Additional duties—Landlord of rental complex with less than one hundred percent nonsmoking units.

17.90    Smoking prohibited by law in certain areas.

17.91    Required documents available for city inspection.

17.92    Smoking and smoke generally.

17.93    Penalties and enforcement.

17.94    Private enforcement.

*    For state law as to city health ordinances, boards and officers, see Health and Safety Code § 101450 et seq.
As to filthy stables and yards, see § 5.21 of this code. As to disposal by garbage collector of articles obtained from premises where infectious diseases occur, see § 16.16.

ARTICLE I. PUBLIC HEALTH CODE*

*    For the statutory authority to adopt codes by reference see Gov. C. §§ 50022.150022.8 and 50022.10.

17.1 Adoption; where filed.

Subject to the particular additions, deletions and amendments hereinafter set forth in this article, the rules, regulations, provisions and conditions set forth in that certain code entitled “Public Health Code (Ordinance No. 7583),” including amendments thereto by Ordinance Nos. 7616, 7674, 8095, 8200, 8284, 8425, 8588, 8614, 9375, 9656, 10,075, 10,238, 10,624 and 10,728, as reprinted May, 1964, promulgated, adopted and published by the county of Los Angeles, including the appendix “Rules and Regulations” attached thereto, three full printed copies of which, printed as a code in book form, were by the city council ordered filed and which have been actually filed in the office of the city clerk, and which as so on file are referred to and by this reference expressly incorporated herein and made a part hereof as fully and for all intents and purposes as though set forth herein at length, shall be and the same are established and adopted as the rules, regulations, provisions and conditions to be observed and followed in matters of public health, sanitation and public institutions in the city; and subject to such additions, deletions and amendments hereinafter set forth, such code with such “Rules and Regulations” appendix, containing such rules, regulations, standards, provisions and conditions, is established and adopted and the same shall be designated, known and referred to as the “Public Health Code” of and for the city. (Ord. No. 1476, § 2; Ord. No. 1516, § 1; Ord. No. 1676.)

17.1-2 References to county—Health officer.

Each and every reference in county Ordinance 9375 to the county or any county officer is designated to relate to the city of South Pasadena and respective city officer.

The county health officer is redesignated as the health officer for the city. (Ord. No. 1516, § 2.)

17.2 Amendments.

The following sections of the Public Health Code are repealed:

Sections 601, 603, 608 and 833. (Ord. No. 1476, § 3.)

17.2-1 Definitions.

(a)    “Food facility” means any food establishment, food warehouse, milk warehouse, mobile food facility, mobile support unit, vehicle, vending machine, swap meet prepackaged food stand, mobile preparation unit, or any place used in conjunction with the operation of the above, including, but not limited to, storage facilities for food utensils, equipment, and materials.

(b)    “Food official inspection report” means the written notice prepared and issued by the county health officer after conducting an inspection of a food facility to determine compliance with all applicable federal, state and local statutes, orders, ordinances, quarantines, rules, regulations, or directives relating to the public health.

(c)    “Mobile food facility” means any vehicle used in conjunction with a commissary or other pertinent food facility upon which food is sold or distributed at retail. “Mobile food facility” does not include a “transporter” used to transport packaged food from a food facility, or other approved source to the consumer.

(d)    “Mobile support unit” means a vehicle used in conjunction with a commissary or other permanent food facility that travels to and services mobile food facilities as needed to replenish supplies, including food and potable water, clean the interior of the unit, or dispose of liquid or solid wastes. (Ord. No. 2055, § 1; Ord. No. 2217, § 1, 2011.)

17.2-2 Grading and letter grade card.

(a)    “Grading” means the letter grade issue by the Los Angeles County health officer at the conclusion of the routine inspection of a food facility. The grade shall be based upon the scoring method set forth in this section resulting from the food official inspection report and shall reflect the food facility’s degree of compliance with all applicable federal, state and local statutes, orders, ordinances, quarantines, rules, regulations, or directives relating to the public health.

(b)    “Letter grade card” means a card that may be posted by the Los Angeles County health officer at a food facility upon completion of a routine inspection that indicates the letter grade of the facility as determined by the Los Angeles County health officer using the scoring method set forth in this section. For the purposes of this provision, a food facility shall include a food establishment operating in conjunction with a food processing establishment.

(c)    The Los Angeles County health officer, in his or her discretion, may immediately close any food facility which, upon completion of the routine inspection, does not achieve at least a “C” grade as defined in this section. Nothing in this provision shall prohibit the Los Angeles County health officer from immediately closing any food facility if, in his or her discretion, immediate closure is necessary to protect the public health.

(d)    The letter grade shall be based upon the final numerical percentage score set forth in the food official inspection report, as follows:

(1)    A grade of “A” shall indicate a final score of ninety percent or higher as determined by the Los Angeles County health officer;

(2)    A grade of “B” shall indicate a final score less than ninety percent but not less than eighty percent as determined by the Los Angeles County health officer;

(3)    A grade of “C” shall indicate a final score less than eighty percent but not less than seventy percent as determined by the Los Angeles County health officer. (Ord. No. 2055, § 1; Ord. No. 2074, § 1; Ord. No. 2084, § 2; Ord. No. 2217, § 2, 2011.)

17.2-3 Inspection score card.

(a)    “Inspection score card” means a card that may be posted by the Los Angeles County health officer at a food facility, upon completion of a routine inspection, that indicates the total numerical percentage score for the facility as determined by the Los Angeles County health officer and as set forth in the food official inspection report. For the purposes of this provision, a food facility shall include a food facility operating in conjunction with a food processing establishment.

(b)    The Los Angeles County health officer, in his or her discretion, may immediately close any food establishment which, upon completion of the routine inspection, achieves a total numerical percentage score less than seventy percent as set forth in Section 8.04.040 of the Los Angeles County Code. (Ord. No. 2055, § 1; Ord. No. 2074, § 2; Ord. No. 2084, § 3; Ord. No. 2217, § 3, 2011.)

17.2-4 Notice of closure.

“Notice of closure” means a public notice that may be posted by the Los Angeles County health officer at a food establishment upon suspension of revocation of the establishment’s public health permit and that results in the immediate closure of the establishment and the discontinuance of all operations of the food establishment, by order of the Los Angeles County health officer, because of violations of applicable federal, state and local statutes, orders, ordinances, quarantines, rules, regulations, or directives relating to the public health. (Ord. No. 2055, § 1.)

17.2-5 Routine inspection.

“Routine inspection” means a periodic, unannounced inspection of any business or occupation specified in Los Angeles County Code, Title 8, Section 8.04.720, to determine compliance with all applicable federal, state and local statutes, orders, ordinances, quarantines, rules, regulations, or directives relating to the public health. A routine inspection shall not mean an inspection conducted by the Los Angeles County health officer to determine compliance with a previously issued food official inspection report or any interim inspection conducted to determine compliance with specific regulations or legal requirements. (Ord. No. 2055, § 1.)

17.2-6 Posting requirements—Penalty for noncompliance—Documents available for public review.

(a)    Upon issuance by the Los Angeles County health officer, the health officer shall post at every food facility the letter grade card or the inspection score card as determined by the Los Angeles County health officer, so as to be clearly visible to the general public and to patrons entering the facility. “Clearly visible to the general public and to patrons” shall mean:

(1)    Posted in the front window of the facility within five feet of the front door or posted in a display case mounted on the outside front wall of the food facility within five feet of the front door;

(2)    Posted adjacent to the pass out window on a mobile food facility, or on the customer services side of an unenclosed mobile food facility; or

(3)    Posted in a location as directed and determined in the discretion of the Los Angeles County health officer to ensure proper notice to the general public and to patrons.

(b)    In the event that a food facility is operated in the same building or space as a separately licensed or permitted business, or in the event that a food facility shares a common patron entrance with such a separately licensed or permitted business, or in the event of both, the Los Angeles County health officer shall post the letter grade card or the inspection score card in the initial patron contact area, or in a location as determined in the discretion of the Los Angeles County health officer.

(c)    The letter grade card and the inspection score card shall not be defaced, marred, reproduced, copied, camouflaged, hidden or removed. It shall be unlawful to operate a food facility unless the letter grade card or the inspection score card as determined by the Los Angeles County health officer, is in place as set forth hereunder. Removal of the letter grade card or the inspection score card is a violation of this chapter and may result in the suspension or revocation of the public health permit and be punishable as specified in Los Angeles County Code, Title 8, Section 8.04.930.

(d)    Every food facility shall post a legibly lettered sign which displays the following information so as to be clearly visible to the general public and to patrons entering the facility:

Any public health concern regarding this facility should be directed to the County of Los Angeles, Environmental Health office located at: (local office address and telephone number to be provided by the Los Angeles County health officer).

(e)    The food official inspection report upon which the letter grade card or the inspection score card is based and all subsequent reports issued by the Los Angeles County health officer shall be maintained at the food facility and shall be available to the general public and to patrons for review upon request. The food facility shall keep the food official inspection report and all subsequent reports until such time as the Los Angeles County health officer completes the next routine inspection of the facility and issues a new food official inspection report. (Ord. No. 2055, § 1; Ord. No. 2074, § 3; Ord. No. 2084, § 4; Ord. No. 2217, § 4, 2011.)

17.2-7 Letter grade card and inspection score card—Period of validity.

A letter grade card, an inspection score card, or both, as determined by the Los Angeles County health officer, shall remain valid until the Los Angeles County health officer completes the next routine inspection of the food establishment. (Ord. No. 2055, § 1; Ord. No. 2074, § 3.)

17.2-8 Public health permit suspension or revocation—Notice of closure.

(a)    Upon issuance of a written notice of suspension or revocation of the public health permit by the Los Angeles County health officer, the health officer shall post a notice of closure at the food establishment so as to be clearly visible to the general public and to patrons.

(b)    Upon issuance of the written notice of suspension or revocation of the public health permit by the Los Angeles County health officer, the food establishment shall immediately close to the general public and to patrons and shall discontinue all operations until the public health permit has been reissued or reinstated by order of the Los Angeles County health officer or until the establishment no longer operates as a food establishment.

(c)    The notice of closure shall remain posted until removed by the Los Angeles County health officer. Removal of the notice of closure by any person other than the Los Angeles County health officer or the refusal of a food establishment to close upon the issuance of the written notice of suspension of the public health permit is a violation of this chapter and may result in the suspension or revocation of the food establishment’s public health permit and shall be punishable as specified in Los Angeles County Code, Title 8, Section 8.04.930. (Ord. No. 2055, § 1.)

17.2-9 Food handler’s training certification.

The following provisions shall apply:

(a)    Definitions. As used in this section:

(1)    “Certified food handler” means an owner, operator, or any other person at least eighteen years of age who supervises all or part of the food service operations within a food service operation and is responsible for training the operation’s employees in the areas set forth in county of Los Angeles Code, Title 11, Section 11.11.190. At the discretion of the director, and upon a showing of good cause, the director may waive the requirement that a certified food handler be at least eighteen years of age.

(2)    “Department” means the county of Los Angeles, department of health services.

(3)    “Director” means the director of department of health services or duly authorized designee.

(4)    “Food handler’s training certificate” means a certificate issued by the department, certifying that a food handler has satisfactorily demonstrated competency in food protection and practices by passing a written examination administered by the department or by completing a food handler’s training course approved by the director.

(5)    “Food service operation” means any food service business that prepares any potentially hazardous food on the premises for sale or gift to the public and includes, but is not limited to, all restaurants, markets, bakeries, mobile food preparation units, commissaries, and food processing establishments.

(6)    “Potentially hazardous food” means those foods set forth in California Health and Safety Code, Section 113845 as it currently exists or hereafter may be amended.

(b)    Application and Effect.

(1)    Within one year of the effective date of the ordinance codified in this section, each food service operation as defined in Los Angeles County Code Section 8.04.110.A.5 shall have at least one certified food handler on the premises at all times during operating hours.

(2)    Failure to have a certified food service handler on site at all times during the operating hours of the food service operation and as specified in this section within one year from the effective date of the ordinance codified in this section shall be grounds for the suspension or revocation of the operation’s public health permit pursuant to the applicable provisions of the Los Angeles County Code, Title 8 and shall be punishable as set forth in Los Angeles County Code, Title 8, Section 8.04.930.

(c)    Procedure for Obtaining a Food Handler’s Training Certificate.

(1)    Every person desiring certification as a certified food handler shall file with the department an application for certification, accompanied by an application fee. Upon application, each person desiring certification shall provide:

(A)    Proof of successful completion of a food handler’s training course approved by the department;

(B)    A food handler’s training certificate which indicates passage of an examination developed and administered by The Center for Occupational and Professional Assessment of the Educational Testing Service; or

(C)    Any other food handler’s training certificate which, in the discretion of the director, is equivalent to either subsection (A) or (B) of this subsection (c)(1).

(2)    In the alternative to the procedure set forth in subsection (c)(1) of this section, any person desiring certification as a certified food handler, upon payment of an examination fee, may make an examination administered by the department. The department shall certify only those persons who receive a score of seventy-five percent or higher on its examinations. The payment of any examination fee shall be in addition to the application fee set forth in this section.

(d)    Food Handler’s Training Course. Any food handler’s training course taken by a person desiring certification as a certified food handler shall be a minimum of four hours in duration. The course of instruction shall include, but not be limited to, the following subject matter: microorganisms, sources of food-borne illness microorganisms, food-borne illness, the means by which food is contaminated by microorganisms and toxic substance, the methods for protection of food to prevent food-borne illnesses, personal hygiene for food handlers, proper utensils and equipment washing and sanitizing, and proper receiving and storage of food.

(e)    Multiple Food Service Operations. Persons who operate more than one food service operation shall be required to have a certified food handler at each operation at all times during operating hours.

(f)    Exemptions. Food service operations which deal exclusively in non-potentially hazardous prepackaged food and beverages or food service operations required by the department to have only temporary operating permits shall be exempt from the provisions of this section.

(g)    Display of Food Handler’s Training Certificate. The food handler’s training certificate shall be posted in a conspicuous place within the food service operation, or in a location designated and approved by the director.

(h)    Change of Certified Food Handler. A certified food handler who changes his or her place of employment after obtaining a food handler’s training certificate may display the certificate in any other food service operation in which he or she subsequently is employed. A food service operation which loses its certified food handler must obtain another certified food handler within thirty days.

(i)    List of Certified Food Handlers. The department shall maintain a current list of all certified food handlers within the County of Los Angeles.

(j)    Expiration. The food handler’s training certificate shall be valid for four years from the date of issuance. Upon the expiration of the food handler’s training certificate, all persons must re-apply for a new certification according to the procedure set forth in subsection (a) of this section.

(k)    Duplicate Food Handler’s Training Certificate. The director, upon a showing of good cause, may issue duplicate food handler’s training certificates upon the payment of a duplicate certificate fee.

(l)    Revocation of Food Handler’s Training Certification.

(1)    The director may immediately revoke any food handler’s training certificate when any of the following is found to exist within a food service operation which is operated by or under the supervision of a certified food handler:

(A)    Evidence indicating repeated or continuing violations of required procedures and practices in the preparation, service, storage, distribution or sale of food or beverage offered for public consumption;

(B)    Any condition detrimental to the public health, which shall include but not be limited to any condition that can cause food infection, food intoxication, disease transmission or any hazardous condition including but not limited to unsafe food temperature; or

(C)    Evidence indicating falsification of information required by the department for issuance of the food handler’s training certificate.

(2)    The director shall issue a notice to the certified food handler setting forth the acts or omissions with which he or she is charged and informing him or her of the right to a hearing, if requested, to show cause why the certificate should be reinstated.

(m)    Right to Appeal Following Revocation.

(1)    Any certified food handler whose certificate has been revoked may make a written request for hearing within fifteen calendar days after receipt of the notice specified in Los Angeles County Code, Title 11, Section 11.11.230, to show cause why the certificate should be reinstated. A failure to request a hearing within fifteen calendar days after receipt of the notice shall be deemed a waiver of the right to a hearing. When circumstances warrant, the director may order a hearing at any reasonable time within this fifteen-day period to expedite the certification revocation process.

(2)    The hearing shall be held within fifteen calendar days of the receipt of the request for hearing. Upon written request of the certified food handler, the director may postpone any hearing date, if circumstances warrant such action.

(3)    An environmental health services manager for the department shall preside over any hearing requested under this section.

(n)    Notice of Decision. The director shall issue a written notice of decision to the certified food handler within five working days of the hearing. The notice of decision shall specify the acts or omissions with which the certified food handler is charged and shall specify either that the certification remains revoked or that it has been reinstated. (Ord. No. 2055, § 1.)

17.2-10 Violation.

Notwithstanding any other provision of this chapter, violation of this section is punishable by a fine of not more than five hundred dollars or by imprisonment in the Los Angeles County jail for not more than six months, or both. Each day during any portion of which any violation of any provisions of this chapter is committed, continued or permitted makes such violation a separate offense. (Ord. No. 2055, § 1.)

17.2-11 Severability.

If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby. (Ord. No. 2055, § 1.)

17.3 Definitions.

For purposes of this division, the following definitions shall apply:

(a)    “Chlorofluorocarbons” or “CFCs” means the family of substances containing carbon, fluorine and chlorine, and having no hydrogen atoms and no double bonds, and which includes without limitation, CFC-11, CFC-12, CFC-13, CFC-14 and CFC-15. Examples of products containing or utilizing chlorofluorocarbons are “Freon” used in air conditioning and refrigeration units, degreasers and solvents used in the cleaning of metals and electronic components and rigid and flexible foam used as packaging material and insulating material, and flexible foam used in car seats, bedding and furniture.

(b)    “Halon” means any fully halogenated carbon compound containing bromine, chlorine, or fluorine, and includes, without limitation, Halon-1301, Halon-1211 and Halon-2402.

(c)    “Ozone-depleting compound” means any CFC, Halon, the chemical compounds of methyl chloroform and carbon tetrachloride or any other chemical compound hereafter designated by the city council by amendment to this article, as being an “ozone-depleting compound.”

(d)    “CFC food packaging” means any container, carton, box, cup, lid, plate, bowl, tray or wrapping of any kind, which is or may be used to contain, package, store, insulate or serve any food and/or beverage, where any CFC has been used in the manufacturing and production of such item.

(e)    “Rigid or flexible foam containing or utilizing an ozone-depleting compound” means any rigid or flexible foam, such as styrofoam or thermoplastic foam, building insulation, or any other rigid or flexible foam that contains within any closed cell any ozone-depleting compound or that was produced by using an ozone-depleting compound in any manner during the manufacturing process.

(f)    “City” means all territory within the corporate limits of the city of South Pasadena, county of Los Angeles, state of California.

(g)    “City council” means the city council of the city of South Pasadena.

(h)    “Person” includes any natural person, firm, association, partnership or corporation, whether acting as a principal, agent, employee or otherwise, and includes any governmental entity or charitable organization.

(i)    “Establishment” means any domestic or foreign corporation, firm, association, syndicate, joint stock company, partnership of any kind, joint venture, club, common law trust, society or individual engaged in any profession, trade, occupation and any and every kind of calling carried on for profit or otherwise within the city, including any governmental entity or charitable organization.

(j)    “Licensed health care facility” means any health care facility licensed either by the State of California Department of Health Services, pursuant to the provisions of the Health and Safety Code, or by the United States Department of Health and Human Services. (Ord. No. 1969, § 2.)

17.4 Prohibition on the manufacture, sale or distribution of products utilizing ozone-depleting compounds.

(a)    Within the city, no establishment shall use any ozone-depleting compound in any process or activity involving the manufacture, production, cleansing, degreasing or sterilization of any substance or product, except as otherwise provided in this section.

(b)    Within the city, no establishment shall package any product with rigid or flexible foam containing or utilizing an ozone-depleting compound, except as otherwise provided in this section.

(c)    Within the city, no establishment shall purchase, obtain, store, sell, distribute or otherwise provide to any person any CFC food packaging material, except as otherwise provided in this section.

(d)    Exemptions:

(1)    This section shall not apply to the study and/or research of the effects of the release of ozone-depleting compounds into the environment and/or the development of alternative technologies, where such compounds are necessary for conducting such study and research.

(2)    This section shall not apply to any ozone-depleting compound used as a coolant in any refrigeration or air conditioning unit or system.

(3)    Subsection (a) of this section shall not apply to any licensed health care facility operated either for profit or not for profit, including any medical research conducted at such facility, or to manufacturers of any “drug” and/or any medical “device” as the terms “drug” and “device” are defined in Title 21 U.S.C. Sections 321(g)(1) and 321(h) of the Federal Food, Drug and Cosmetic Act, but only if the manufacturer is required to comply with the Good Manufacturing Practice requirements adopted pursuant to Title 21 U.S.C. Section 360j(f). This exemption is valid until such time as safe and effective alternatives to the current uses of ozone-depleting compounds by the licensed health care facility or manufacturer of drugs and/or medical devices are available, as determined by the public works director and approved by council. All manufacturers of drugs and/or medical devices that utilize ozone-depleting compounds shall adopt and implement a recycling system whereby any ozone-depleting compound used as a sterilant by such manufacturers shall be recaptured and recycled in accordance with a recycling system approved by the public works director. Such approval shall be evidenced by a certificate issued by the public works director.

(4)    This section shall not apply to any person manufacturing a product or component product under contract with any branch of the United States Armed Forces or with any establishment under contract with such branch where applicable military specifications require the use of an ozone-depleting compound. Such manufacturer shall adopt and implement a recycling system whereby any ozone-depleting compound used as a sterilant shall be recaptured and recycled in accordance with a recycling system approved by the public works director. Such approval shall be evidenced by a certificate issued by the public works director. (Ord. No. 1969, § 2.)

17.5 Prohibition on the use of ozone-depleting compounds in building insulation.

In the construction of any building or structure (commercial, industrial, residential or other), no person shall install any building insulation which contains or utilizes an ozone-depleting compound. Simultaneous with the filing of a building permit application, the applicant shall submit a written verification certifying that the building insulation to be installed does not contain an ozone-depleting compound. (Ord. No. 1969, § 2.)

17.6 Disposal of ozone-depleting compounds contained in building insulation.

No person shall erect, construct, enlarge, alter, repair, move, improve, remove, convert, renovate or demolish any building or structure which requires removal of existing insulation that contains an ozone-depleting compound without recovering and properly disposing of such insulation in accordance with the procedures specified by the public works director. (Ord. No. 1969, § 2.)

17.7 Recycling of ozone-depleting compounds used as coolants in refrigeration and/or air conditioning units.

All establishments that manufacture, repair, service or maintain any refrigeration or air conditioning unit or system, shall adopt and implement a recycling system whereby the ozone-depleting compound used as a coolant in such refrigeration or air conditioning unit or system will not be released into the environment, but will be recaptured and recycled in accordance with an approved recycling system. (Ord. No. 1969, § 2.)

17.8 Restriction on sale of ozone-depleting compounds used as coolants in refrigeration and/or air conditioning units.

No person shall sell any ozone-depleting compound for use as a coolant in a refrigeration or air conditioning unit or system to any person who does not possess and provide evidence of a certificate of possession and operation of a recycling system. (Ord. No. 1969, § 2.)

17.9 Disposal of refrigeration or air conditioning unit or system.

No person shall dispose of or shall cause the disposal of any refrigeration or air conditioning unit or system either in conjunction with the disposal of another product, or in any other manner, without first recapturing and recycling any ozone-depleting compound used as a coolant in said unit or system, or without first ensuring such coolant will be recaptured and recycled, in accordance with an approved recycling program. (Ord. No. 1969, § 2.)

17.10 Permit required for testing fire extinguishing systems or units which utilize halon.

Other than testing or training as may be required by any statute, rule or regulation mandating the release of halon, no person shall release halon in the training of personnel or in the testing of any fire extinguishing system unless the owner or lessee of the premises has obtained a testing permit from the fire department. (Ord. No. 1969, § 2.)

17.11 Reclamation of halons from portable fire extinguishing systems or units.

All establishments that repair, service or perform maintenance on any portable fire extinguishing system or unit shall adopt and implement a reclamation system whereby any halons used as the extinguishing agent in any such system or unit shall not be released into the environment, but shall be recaptured and recycled or properly disposed of in accordance with an approved reclamation system. (Ord. No. 1969, § 2.)

17.12 Exemption.

Any person upon submittal of an application, payment of the appropriate processing fee which fee shall be in accordance with a fee schedule adopted by resolution of the city council and upon a showing that no technically or economically feasible alternative for such person’s use of an ozone-depleting compound is currently available, may apply for an exemption from any section or subsection of this article. The public works director, supported by findings based upon factors including but not limited to those factors identified below, shall recommend approval or denial of said exemption, with final action to be taken by the city council. The following factors are among those to be considered in submitting and considering any application for an exemption: (1) the technical, practical and economic viability of the alternative; (2) the health, safety and environmental impact of the alternative; (3) the length of time for which the exemption is sought and the length of time needed before a technically and economically feasible alternative can be implemented; (4) the measures already taken or to be taken by the applicant to minimize and/or eliminate the release of an ozone-depleting compound, including whether and when a reclamation and/or recycling system has been or is to be implemented, as well as the effectiveness of any such system; (5) the hardship that will result to the applicant in the event the exemption is not granted; (6) whether the applicant’s actions are consistent with the spirit and intent of this division. (Ord. No. 1969, § 2.)

17.12-1 Enforcement.

(a)    Each and every day a violation of this article continues to exist shall constitute a separate offense and violation, and each violation shall be punishable in accordance with the provisions of this section.

(b)    Where a violation has occurred, the public works director shall cause a notice of violation to be sent to the violator. If the violator disputes the violation, he or she may appeal the notice of violation to the city manager by filing a written notice of appeal with the city clerk within fifteen days of service of the notice of violation. If requested by the violator, the city manager shall provide a hearing on the notice of violation within fifteen days of issuance of the notice of violation. Within fifteen days after a hearing on the notice of violation, the city manager, based on evidence presented, shall either confirm, modify or dismiss the notice of violation.

(c)    Any violation of the provisions of this article shall be a misdemeanor.

(d)    In addition to the penalties provided in this section, any condition caused or permitted to exist in violation of any of the provisions of this article shall be deemed a public nuisance and may be abated in accordance with applicable provisions of the municipal code. (Ord. No. 1969, § 2.)

17.12-2 Severability.

If any section, subsection, sentence, clause, or phrase of this article is for any reason held to be invalid or unconstitutional following a decision by a court of competent jurisdiction, such decision shall not effect the validity of the remaining portions of the article. The city council declares that it would have passed this article and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any other portion of this article is subsequently declared invalid or unconstitutional. (Ord. No. 1969, § 2.)

ARTICLE II. MASSAGE ESTABLISHMENTS

17.13 Findings and purpose.

The city council finds and declares as follows:

(a)    The permit requirements and restrictions imposed by this article 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 Cal. Gov’t Code § 51031, 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 article are intended to reduce the burden of massage establishment regulation on the police department.

(e)    The regulations and restrictions contained in this article are intended to discourage massage establishments from degenerating into houses of prostitution and the means utilized in this article bear a reasonable and rational relationship to the goals sought to be achieved. (Ord. No. 2292, § 1, 2016.)

17.14 Definitions.

For the purposes of this article, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

“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.

“Chief of police” means the chief of police of the city of South Pasadena, or designee.

“City” means the city of South Pasadena.

“City council” means the city council of the city of South Pasadena.

“City manager” means the city manager of the city of South Pasadena, or designee.

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

“Customer area” means areas open to customers of the establishment or the general public.

“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 article the term “employee” shall include independent contractors.

“Health department” means the Department of Public Health, County of Los Angeles.

“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.

“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. A manager must meet the standards and qualifications of SPMC 17.17 and 17.18 to qualify as a manager.

“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.

“Massage certificate” means a certificate to practice massage, issued by the California Massage Therapy Council (CAMTC) pursuant to the Cal. Bus. & Prof. Code § 4600 et seq.

“Massage establishment” means any enterprise or establishment having a fixed place of business conducted within the city of South Pasadena, 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.

“Massage room” means a cubicle, booth, room or enclosed or semi-enclosed area within a massage establishment where massage services are performed on patrons.

“Massage technician” means any person who administers to another person a massage as defined herein, within a massage establishment for any form of consideration or in exchange for anything of value whatsoever. The terms “massage therapist,” “massage practitioner,” “massage trainee,” “masseur” or “masseuse” are included within this definition for purposes of this article.

“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 SPMC 17.17 and 17.18 to qualify as an operator.

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

“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.

“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.

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

“Police department” means the police department of the city of South Pasadena.

“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. (Ord. No. 2292, § 1, 2016.)

17.15 Permits required.

(a)    Operator’s Permit. Except as otherwise provided herein, it shall be unlawful for any person to engage in, conduct or carry on, or to permit the engagement in, conduct of or carrying on the business or operation of a massage establishment within the city without first obtaining an operator’s permit pursuant to the provisions of this article, and complying with all other applicable provisions of this code, including, but not limited to, securing the necessary business licenses as required by Chapter 18 SPMC.

(b)    Conditional Use Permit. A massage establishment may operate only in zones for which such use is permitted pursuant to Chapter 36 SPMC, and only with a valid conditional use permit. Any conditional use permit issued for a massage establishment shall expire upon the revocation, termination or expiration of the operator’s permit for the massage establishment. No conditional use permit shall be approved for any massage establishment proposed to be located within a radius of 1,000 feet from any existing legally operating massage establishment.

(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 18 SPMC.

(d)    A Massage Certificate. No massage technician may practice massage in the city of South Pasadena without first obtaining a massage certificate. (Ord. No. 2292, § 1, 2016.)

17.16 Exceptions.

The requirements of this article shall not apply to the following individuals while engaged in performing the duties of their respective professions:

(a)    Physicians, surgeons, chiropractors, physical therapists or osteopaths duly licensed to practice their respective professions in the state of California. This exemption only applies if the massage is performed by the licensed professionals or by a staff member of said licensed professionals in the course of treatment prescribed by said professional and only when the prescribing professional is present on the premises;

(b)    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 massage certificate and the acupuncturist office must obtain an operator’s permit from the city of South Pasadena in compliance with all codes and the California Acupuncture Board;

(c)    A registered or licensed vocational nurse working on the premises of, and under the direct supervision of, a state licensed physician, surgeon, chiropractor or osteopath. Practical nurses or other persons not licensed by the state of California under Cal. Bus. & Prof. Code Division 2 or the CAMTC under Cal. Bus. & Prof. Code § 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;

(d)    Hospitals, nursing homes, sanatoriums, or other health care facilities duly licensed by the state of California;

(e)    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;

(f)    Coaches and trainers while acting within the scope of their employment at an accredited high school, junior college, college, or university;

(g)    Trainers of amateur, semiprofessional or professional athletes or athletic teams while acting within the scope of their role as trainer. (Ord. No. 2292, § 1, 2016.)

17.17 Operator’s permit—Application.

(a)    Any person desiring to obtain a permit to operate a massage establishment shall submit a written application, signed under penalty of perjury, to the finance director using a form specifically adopted by the finance director 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 article.

(b)    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 article.

(c)    The application and fee required pursuant to this section shall be in addition to any other license, permit or fee required by any other article 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.

(d)    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 massage certificate is required.

(e)    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”:

(1)    The type of ownership of the business (individual, partnership, corporation or otherwise):

(A)    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,

(B)    If the applicant is a partnership, the application shall set forth the name and residence addresses of each of the partners, including limited partners,

(C)    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;

(2)    The true full and precise name under which the massage establishment is to be conducted;

(3)    The present or proposed address where the massage establishment is to be conducted and all telephone numbers for the massage establishment;

(4)    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;

(5)    The name and residence addresses of the proposed operator or manager who will be principally in charge of the operation of the massage establishment;

(6)    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;

(7)    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;

(8)    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;

(9)    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;

(10)    All criminal convictions of the applicant, including pleas of nolo contendere, within the last 10 years including those convictions dismissed or expunged pursuant to Cal. Penal Code § 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefor;

(11)    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;

(12)    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;

(13)    Authorization for the city, its agents and employees to seek verification of the information contained in the application;

(14)    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;

(15)    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;

(16)    A certificate of compliance from any department or agency with authority or jurisdiction over the building in which the massage establishment is to be located, including but not limited to the city’s planning and building department, must be submitted 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 finance director 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.

(f)    Every owner and operator shall also provide the following personal information:

(1)    The owner or operator’s full, true name and all aliases used;

(2)    Date and place of birth, California driver’s license, California identification card, Social Security card and resident alien card, if applicable;

(3)    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;

(4)    Acceptable written proof that the owner and operator is at least 18 years of age;

(5)    Height, weight, gender and color of hair and eyes.

(g)    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.

(h)    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 article. (Ord. No. 2292, § 1, 2016.)

17.18 Operator examination required.

(a)    Every operator shall be required to take and pass a written test assessing knowledge of the requirements of this article to ensure a complete understanding of the duties of a massage establishment owner, operator, manager or employee’s respective duties prior to issuance of an operator’s permit or before engaging in business as a massage establishment.

(b)    The chief of police shall establish standards and procedures governing administering, grading and noticing of the examination required by this section.

(c)    The examination shall consist solely of a written test regarding the rules and regulations for massage establishments and employees as set forth in this article. The examination shall be prepared, conducted and graded by the city, or in its sole discretion, by a competent instructor certified by the Council for Private Post-Secondary and Vocational Education pursuant to Cal. Educ. Code § 94311.1.

(d)    A score of 70 percent or better is required on each section of the written test. An applicant who fails the examination shall not be eligible to take another examination until 60 calendar days after the previous examination. An applicant who fails to pass upon a second attempt shall not again be eligible until six months thereafter. If an applicant has three or more sustained municipal code violations during any permit period, the applicant, upon renewal, must retake and pass the written examination designated in this article.

(e)    The examination will be in the English language. In the event the applicant requires that any section of the examination be given in another language, the applicant shall pay any additional fees or costs for a court-certified and South Pasadena approved interpreter to interpret the examination. Proof of valid court certification must be provided to the chief of police prior to the administration of any such non-English language examination. (Ord. No. 2292, § 1, 2016.)

17.19 Operator’s permit—Issuance or denial.

(a)    Upon receipt of a complete written application for a permit, 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 has not passed the written examination as required by this article;

(2)    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 Cal. Penal Code § 290, or conduct in violation of Cal. Penal Code § 266h, 266i, 314, 315, 316, 318, subsection (a), (b), (d) or (h) of Cal. Penal Code § 647, or Cal. Penal Code § 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 Cal. Penal Code § 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 Cal. Health & Safety Code § 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in Cal. Health & Safety Code § 11054, 11055, 11056, 11057 or 11058,

(C)    Been convicted of any offense in any other state, which is the equivalent of any of the abovementioned offenses,

(D)    Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Cal. Penal Code §§ 11225 through 11235, 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 article, would be grounds for denial, suspension or revocation of the permit,

(F)    Has had a massage operator or massage certificate 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 SPMC 17.43;

(3)    The owner or operator has made a false, misleading or fraudulent statement or omission of fact to the city in the permit application process;

(4)    The application does not contain all of the information required by SPMC 17.17;

(5)    The owner or operator is not at least 18 years of age;

(6)    The massage establishment as proposed does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards;

(7)    The required fee(s) has not been paid or all other requirements of this article have not been satisfied in the time specified.

(b)    If the application is denied for failure to comply with subsection (a)(2) or (3) of this section, the applicant may not reapply for a period of 24 months from the date the application was denied.

(c)    If the chief of police, upon completion of the investigation, determines that the applicant does not fulfill the requirements as set forth in this article, the chief of police shall deny said application by dated written notice to the applicant. The applicant shall have the right of appeal as set forth in SPMC 17.35. (Ord. No. 2292, § 1, 2016.)

17.20 Operating requirements—General conditions.

All massage establishments shall comply with the following general conditions and any other conditions specified by the chief of police which are consistent with state law:

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

(b)    No massage establishment shall employ a massage technician in that capacity who does not possess a current and valid CAMTC certification.

(c)    All massage establishments required to be licensed under this article shall have a manager on the premises at all times when the massage establishment is open. The operator of each massage establishment shall file a statement with the finance director or designee, 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 article.

(d)    The operator’s permit shall be displayed in a conspicuous public place in the lobby of the massage establishment.

(e)    The hours of operation must be posted in the front window and clearly visible from the outside.

(f)    No massage establishment required to be licensed under this article shall open for business without having at least one massage technician who holds a current valid massage certificate for that specific massage establishment. There shall be at least one massage technician who holds a current valid massage certificate on the premises, and on duty, at all times when the establishment is open.

(g)    The operator or manager shall ensure that the massage 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 required by SPMC 17.31(b) at all times when working in the massage establishment. Such identification shall be provided to a city official upon demand.

(h)    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 article 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.

(i)    No operator or manager shall employ any person as a massage technician who does not have a massage certificate in good standing. Every 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 designee, within five calendar days of termination.

(j)    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 Cal. Penal Code § 314. Swim attire is not permitted unless providing a water-based massage modality approved by Cal. Bus. & Prof. Code § 10.5. Massage technicians shall maintain the massage certificate badge visibly on their person affixed to the right front of their clothing at all times during business hours.

(k)    It is unlawful for owners or employees of massage establishments or out call massage services, or massage technicians, to conduct or allow any of the following activities:

(1)    It is unlawful for any massage practitioner or technician or any other employee working in a massage establishment or for an out call massage service, or customers, patrons, or guests of the establishment or service, to engage in any specified sexual activities upon the premises of the massage establishment or the out call massage location.

(2)    It is unlawful for any massage technician or other employee of a massage establishment to expose specified anatomical areas in the presence of any client, patron, customer, or guest.

(3)    In the course of administering the massage, it is unlawful for any massage practitioner or technician or other massage establishment employee to make intentional physical contact with the specified anatomical areas of any customer, patron or guest.

(l)    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:

(1)    The name, nicknames or aliases used by an employee;

(2)    The employee’s home address and relevant phone numbers (including, but not limited to, home, cellular and pager numbers);

(3)    The employee’s age, date of birth, gender, height, weight, color of hair and eyes;

(4)    The employee’s Social Security number;

(5)    The date of employment and termination, if any;

(6)    The massage technician’s CAMTC certification information;

(7)    The duties of each employee.

(m)    No massage establishment shall operate as a school of massage, or use the same facilities as that of a school of massage.

(n)    At all times, the operator, manager and employees shall comply with all provisions of this article and any applicable provisions of this code. (Ord. No. 2292, § 1, 2016.)

17.21 Operating requirements—Facilities.

All massage establishments shall comply with the following operating requirements for facilities and any other conditions specified by the chief of police:

(a)    Structure. 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 care agency for approval and shall be accompanied by the appropriate plan check fee.

(b)    Signs. 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 readable sign identifying the premises as a massage establishment. The sign, and the front of the business, shall not be illuminated by strobe or flashing lights.

(c)    Services List. 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.

(d)    Lighting. 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 800 lumens 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.

(e)    Ventilation. The operator or manager shall provide in each massage room minimum ventilation in accordance with the requirements of the 2013 California Building Code (CCR Title 24, Part 2, Volume 1 of 2) or successor provision or provisions.

(f)    Toilet Facilities. 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.

(g)    Bathing, Dressing and Locker Facilities. 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.

(h)    Separate Rooms. If male and female patrons are to be treated simultaneously at the same massage establishment, separate massage rooms, dressing, bathing and toilet facilities shall be provided for male and female patrons. Each separate facility or room shall be clearly marked as such.

(i)    Maintenance. 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.

(j)    Massage Tables. 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.

(k)    Front Door. 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. (Ord. No. 2292, § 1, 2016.)

17.22 Operating requirements—Operations.

All owners, operators and managers, including those that have a massage certificate, shall comply with the following operating requirements and any other conditions specified by the chief of police:

(a)    Equipment. Each operator or manager shall provide and maintain on the premises adequate equipment for disinfecting and sterilizing instruments used in massage.

(b)    Linen. 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.

(c)    Living Quarters Prohibited. 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.

(d)    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.

(e)    Adult Oriented Merchandise Prohibited. The use or possession of adult oriented merchandise in or on any part of a massage establishment is prohibited.

(f)    Recordings. No electrical, mechanical or artificial device shall be used by the operator or manager or any employee of the massage establishment for audio or video recording or for monitoring the performance of a massage, or the conversation or other sounds in the massage rooms without the knowledge and written consent of the patron.

(g)    Client Draping. 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.

(h)    Records. 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. A short medical history form shall be completed by the operator or manager to determine if the patron has any communicable diseases, areas of pain, high blood pressure or any physical condition which may be adversely affected by massage. These records shall be prepared prior to administering any massage or treatment and shall be retained for a period of 24 months after such treatment or service. These records shall be open to inspection upon demand only by officials charged with enforcement of this article or emergency personnel for emergency purposes and for no other purpose. The police department may periodically inspect the records to ensure compliance with this section. The information furnished or secured as a result of any such records shall be used only to ensure and enforce compliance with this article, or any other applicable state or federal laws and shall remain confidential. Any unauthorized disclosure or use of such information by any officer or employee of the city shall constitute a misdemeanor.

(i)    Hours of Operation. Massage operations shall be carried on or conducted, and the premises shall be open, only between the hours of 7:00 a.m. and 10:00 p.m. 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. No person shall operate a massage establishment or administer a massage in any massage establishment or administer a massage pursuant to an off premises massage permit between the hours of 10:00 p.m. and 7:00 a.m. A massage begun any time before 10:00 p.m. must nevertheless terminate at 10:00 p.m. 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.

(j)    Advertising. 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 article and posted on the premises as required by this article, 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 article and posted on the premises as required by this article.

(k)    Handicapped Areas. All massage establishments must comply with all state and federal laws and regulations for handicapped customers.

(l)    Compliance. 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 article.

(m)    Doors. 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 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.

(n)    Massage and Dressing Room Doors. 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.

(o)    Access. No person(s) other than the owner, operator, operator’s employees, holders of valid massage 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.

(p)    Discrimination. No massage establishment may discriminate or exclude patrons on the basis of race, sex, religion, age or handicap.

(q)    Notices. 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 SOUTH PASADENA POLICE DEPARTMENT WITHOUT PRIOR NOTICE.

The language for said notice set forth above may be amended 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. (Ord. No. 2292, § 1, 2016.)

17.23 Inspections.

(a)    The chief of police and the county health 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 article. During an inspection, the police department may also verify the identity of all employees.

(b)    The city’s planning and building department, fire department, police department and the county health department may, from time to time, make an inspection of each massage establishment for the purpose of determining that the provisions of this article, state law or other applicable laws or regulations are met. 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 article 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.

(c)    Inspections of the massage establishment shall be conducted during business hours.

(d)    An operator, manager, their agent, servant or employee 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. (Ord. No. 2292, § 1, 2016.)

17.24 Operator’s permit—Nonassignability.

No operator’s permit may be sold, transferred or assigned by a permittee, or by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be null and void except as hereinafter set forth. (Ord. No. 2292, § 1, 2016.)

17.25 Operator’s permit—Change in ownership of business.

(a)    One or more proposed partners in a partnership granted a 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 partners 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.

(b)    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. (Ord. No. 2292, § 1, 2016.)

17.26 Operator’s permit—Change of location or name.

(a)    Every operator 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)    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)    Any application for an extension or 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 article and all other city ordinances including, but not limited to, zoning ordinances and building, safety and occupancy standards. (Ord. No. 2292, § 1, 2016.)

17.27 Applicability to existing massage establishments.

(a)    Commencing on the effective date of the ordinance codified in this article, all permits for a massage establishment are to be issued in accordance with the provisions of this article.

(b)    The provisions of this article shall be applicable to all persons and businesses described herein whether the described activities were established before or after the effective date of the ordinance codified in this article, except that massage establishments legally in business prior to the effective date hereof shall have three months to comply with the terms hereof. (Ord. No. 2292, § 1, 2016.)

17.28 CAMTC certificate required.

No person shall perform or administer a massage, or advertise to provide massage services in the city, unless such person has in effect a valid current massage certificate. Each massage technician shall possess either 1) a California driver’s license or 2) photo identification badge issued by the city which includes their CAMTC certification number. The massage technician shall carry the license, or wear the identification badge, on his or her person, at all times when working in the massage establishment and shall ensure that a copy of the massage certificate is displayed in a conspicuous place in the lobby during business hours. Each massage technician shall immediately surrender to the chief of police any identification badge upon the suspension, revocation, or expiration of such permit or certificate. (Ord. No. 2292, § 1, 2016.)

17.29 Reserved.

17.30 Reserved.

17.31 Massage practice—General conditions.

All massage technicians shall comply with the following conditions:

(a)    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, 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.

(b)    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.

(c)    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.

(d)    A massage technician shall consent to, and shall not prevent, delay or interfere with an inspection of the massage establishment by the city’s planning and building department, fire department, police department and the health department for the purpose of determining that the provisions of this article 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 article are met. (Ord. No. 2292, § 1, 2016.)

17.32 Operator permit term and renewal.

(a)    Operator permits shall be valid for a period of one year from the date of issuance, unless sooner revoked or abandoned as set forth in this article.

(b)    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 article shall comply with the provisions of this article as they may be amended hereafter.

(c)    Applications for the renewal of a 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. 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.

(d)    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 article. 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.

(e)    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. No. 2292, § 1, 2016.)

17.33 Suspension, revocation, denial and appeal.

(a)    Violation and Noncompliance. Failure of a permittee to comply with any requirement imposed by this article or any other conditions imposed pursuant to the permit shall be grounds for nonrenewal, suspension or revocation of the operator’s permit or conditional use permit.

(b)    Suspension, Nonrenewal or Revocation of Operator’s Permit. The chief of police may suspend, revoke or refuse to renew an operator’s permit if any of the following conditions exist:

(1)    A violation of any of the provisions of this article, or if an operator or manager has been convicted of any law specified in SPMC 17.19(a);

(2)    The chief of police makes any of the findings necessary to deny a permit under SPMC 17.19;

(3)    Employment of any noncertified massage technician for massage services;

(4)    If there have been repeated alleged violations of the provisions of this article which require ongoing supervision or action by law enforcement officers which demonstrate that the operator or manager is unable to operate or manage the massage establishment in a law abiding manner. (Ord. No. 2292, § 1, 2016.)

17.34 Notice.

When the chief of police concludes that grounds for denial, suspension, revocation or refusal to renew a permit exist, the chief of police shall serve the applicant or permit holder, either personally or by certified mail addressed to the address listed on the application, with a notice of denial, nonrenewal or notice of intent to suspend or revoke a permit (the “notice”). This notice shall state the reasons for the proposed action, the effective date of the decision, the right of the applicant or permit holder to appeal the decision to the city manager and that the chief of police’s decision will be final if no appeal is sent to the chief of police by certified mail within the time stated. (Ord. No. 2292, § 1, 2016.)

17.35 Appeal.

(a)    The right to appeal to the city manager shall terminate upon the expiration of 15 calendar days from the date of personal service or the date of acknowledgment on the certified mail of the above notice. The request for appeal shall be personally delivered to or sent by certified mail to the chief of police.

(b)    In the event an appeal is timely filed, the suspension or revocation 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.

(c)    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, applicant or permittee 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.

(d)    The city manager, in his or her sole discretion, may grant or deny a request for a continuance.

(e)    The city manager shall preside over the hearing on appeal or, in the alternative, the city manager may appoint a hearing officer to conduct the hearing and receive relevant evidence. The city manager or designee shall render a written decision within 45 calendar days from the date of the hearing. The decision of the city manager or designee shall be final.

(f)    The following rules of evidence shall apply at the hearing:

(1)    Oral evidence shall be taken only under oath or affirmation. The city manager or designee shall have authority to administer oaths, and to receive and rule on admissibility of evidence;

(2)    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 manager or designee may also call and examine any witness;

(3)    Technical rules relating to evidence and witnesses shall not apply to hearings provided for in this article. Any relevant evidence may be admitted if it is material and is evidence customarily relied upon by responsible persons in the conduct of their affairs regardless of the existence of any common law or statutory rule which might make admission of such evidence improper over objection in civil actions. Hearsay testimony may be admissible and used for the purpose of supplementing or explaining any evidence given in direct examination, but shall not be sufficient in itself to support a finding unless such testimony would be admissible over objection in civil actions. The rules of privilege shall be applicable to the extent they are now or are hereafter permitted in civil actions. Irrelevant, collateral, undue, and repetitious testimony shall be excluded. (Ord. No. 2292, § 1, 2016.)

17.36 New application after denial or revocation of permit.

A person may not apply for a permit pursuant to this article within 24 months from the denial or revocation of such permit. (Ord. No. 2292, § 1, 2016.)

17.37 Surrender of permit.

Any person to whom a permit has been issued pursuant to this article shall immediately surrender his or her permit to the chief of police upon its suspension or revocation. (Ord. No. 2292, § 1, 2016.)

17.38 Fees.

The city council shall establish by resolution, and from time to time may amend, the fees for the administration of this article. Fees required by this article shall be in addition to any other fees that may be required under any other chapter of this code. (Ord. No. 2292, § 1, 2016.)

17.39 Violation and penalty.

(a)    Any person who violates any provision of this article is guilty of a misdemeanor.

(b)    Any massage establishment operated, conducted or maintained contrary to the provisions of this article 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 article.

(c)    The penalties set forth herein, including but not limited to the requirement for posting the notice described in SPMC 17.22(q), are cumulative and in addition to all other remedies, violations and penalties set forth in this article, or in any other ordinances, laws, rules or regulations of the city of South Pasadena, Los Angeles County and the state of California. (Ord. No. 2292, § 1, 2016.)

ARTICLE III. DEEMED APPROVED MASSAGE ESTABLISHMENTS

17.40 Purpose and scope.

(a)    The general purposes of this Article are to protect and promote the public health, safety, comfort, convenience, prosperity, and general welfare by requiring that massage establishments that would otherwise be considered legal nonconforming activities under Article II (commencing with SPMC 17.13) comply with the deemed approved performance standards at SPMC 17.42 and to achieve the following objectives:

(1)    To protect the health, safety, and general welfare of the public by preventing unlawful, unsanitary, and dangerous conditions or practices within the city of South Pasadena;

(2)    To protect residential, commercial, industrial and civic areas and minimize the adverse impacts of nonconforming and incompatible uses;

(3)    To provide opportunities for deemed approved massage establishments to operate in mutually beneficial relationship to each other and to other commercial and civic services;

(4)    To regulate those businesses that provide massage services to the public in order to provide a standard of safety, lawfulness, and quality commonly expected of the industry;

(5)    To provide that deemed approved massage establishments are not the source of undue public nuisances or visual blight in the community;

(6)    To monitor that deemed approved massage establishments do not substantially change in mode or character of operation; and

(7)    To assure that guests and clients of deemed approved massage establishments are provided safe, clean, and secure premises for service.

(b)    Scope. This article shall apply, to the extent permissible under other laws, to all legal nonconforming massage establishments within the city.

(c)    Duplicated Regulation. Whenever any provisions of this article and any other provision of law, whether set forth in this code, or in any other law, ordinance, or resolution of any kind, imposes overlapping or contradictory regulations, or contains restrictions covering any same subject matter, that provision which is more restrictive or imposes higher standards shall control, except as otherwise expressly provided in this article.

(d)    Relationship to the Zoning Regulations. The nonconforming use provisions of the zoning regulations including, but not limited to, SPMC 36.360.010 et seq., shall apply to this article. (Ord. No. 2292, § 2, 2016.)

17.41 Definitions.

As used in this article:

“Condition of correction” means a requirement which must be carried out by the establishment in order to retain its deemed approved status.

“Deemed approved status” means the status conferred upon a deemed approved massage establishment. Deemed approved status replaces legal nonconforming status.

“Hearing officer” means the city manager or his or her designee.

“Illegal activity” means any activity which has been finally determined to be in noncompliance with the deemed approved performance standards in SPMC 17.42. Such an activity shall lose its deemed approved status and shall no longer be considered a deemed approved massage establishment.

“Legal nonconforming massage establishment” means any massage establishment which would otherwise be considered a nonconforming use under Article II of Chapter 17 SPMC. Such an establishment or use shall be considered a deemed approved massage establishment, and shall no longer be considered a legal nonconforming use, except such activity shall be subject to those zoning regulations relating to nonconforming uses as specified in SPMC 36.360.010 et seq., as of the effective date of the ordinance codified in this article.

“Performance standards” means regulations prescribed in the deemed approved performance standards set forth in SPMC 17.42. (Ord. No. 2292, § 2, 2016.)

17.42 Performance standards and deemed approved massage establishments.

(a)    “Deemed approved massage establishment” means any massage establishment (as defined in SPMC 17.14) that is legal nonconforming and in existence immediately following the effective date of any amendment to Article II of Chapter 17 SPMC regulating massage establishments and the practice of massage. Said business shall be considered a deemed approved massage establishment as long as it complies with the deemed approved massage establishment performance standards as set forth in this section. Said business shall no longer be considered a legal nonconforming activity or use.

(b)    A massage establishment shall retain its deemed approved status only if it conforms with the provisions of Article II of Chapter 17 SPMC, commencing with SPMC 17.20 and any other applicable provisions of this code. (Ord. No. 2292, § 2, 2016.)

17.43 Deemed approved status procedure.

(a)    Automatic Deemed Approved Status. All massage establishments that would otherwise be considered legal nonconforming uses under this code and the provisions of Article II of Chapter 17 SPMC shall automatically become deemed approved massage establishments as of the effective date of this article and shall no longer be considered legal nonconforming uses. Each such deemed approved massage establishment shall retain its deemed approved status as long as it complies with the deemed approved performance standards in SPMC 17.42.

(b)    Notification of Owners of Deemed Approved Massage Establishment. The city shall notify the owner of each deemed approved massage establishment, and also the property owner if not the same, of the establishment’s deemed approved status. Such notice shall be sent via certified return receipt mail; shall include a copy of the performance standards of SPMC 17.42 and Article II of this chapter; notification that the establishment is required to comply with all these same performance standards; and that the establishment is required to comply with all other aspects of this article. Should the notice be returned, then the notice shall be sent via regular U.S. mail. (Ord. No. 2292, § 2, 2016.)

17.44 Procedure for consideration of violations to performance standards.

(a)    As a result of an inspection or upon receiving a complaint from the public, police department, or any other interested party that a deemed approved massage establishment is in violation of the performance standards at SPMC 17.42, and once it is determined by the city that violations appear to be occurring, then the deemed approved status of the deemed approved massage establishment in question shall be reviewed by the hearing officer at a public hearing. Notification of the public hearing shall be in accordance with subsection (d) of this section.

(1)    At the public hearing the hearing officer shall receive testimony and other evidence on whether the operating methods of the deemed approved massage establishment are in violation of the performance standards at SPMC 17.42, are causing undue negative impacts in the surrounding area, and whether the property is being maintained in a manner in violation of any provision of this code.

(2)    While the hearing is open, any interested party may present to the hearing officer for his or her consideration any relevant testimony or evidence; failure to do so will preclude the party from raising such issues during any appeal hearing and in court.

(3)    Within 15 days following the public hearing, the hearing officer shall issue a written determination whether the deemed approved massage establishment conforms to the deemed approved performance standards set forth in SPMC 17.42 and to any other applicable criteria, and may:

(A)    Continue the deemed approved status for the establishment in question;

(B)    Continue the deemed approved status for the establishment, subject to reasonable conditions of correction as are in the judgment of the hearing officer necessary to ensure conformity with said criteria and such conditions shall be based on the evidence before the officer; or

(C)    Revoke the deemed approved status if the officer finds that the violations pose a threat to the health and safety of the public.

(4)    The decision of the hearing officer shall be based upon information compiled by staff and testimony from the business owner and all other interested parties. The determination of the hearing officer shall become final 15 calendar days after the date of the written decision unless appealed to the city council in accordance with subsection (c) of this section. Any party seeking to appeal the determination will be limited to issues or evidence presented to the hearing officer prior to the close of the hearing officer’s public hearing on the matter.

(b)    Procedure for Consideration of Violations of Conditions of Corrections. In the event of a failure to comply with any prescribed condition of correction, the hearing officer may hold a public hearing. Notification of the public hearing shall be in accordance with subsection (d) of this section. The same procedures shall apply as described under subsection (a) of this section.

(c)    Appeal to City Council. Within 15 calendar days after imposition of conditions of approval pursuant to the hearing officer’s written determination on a deemed approved massage establishment or the revocation of deemed approved status, an appeal may be taken to the city council by the deemed approved massage establishment owner or any other interested party.

(1)    In the event the last date of appeal falls on a weekend or a holiday when city offices are closed, the next date such offices are open for business shall be the last date of appeal.

(2)    Such appeal shall be made on a form prescribed by the city. The appeal shall state specifically wherein it is claimed there was an error or abuse of discretion by the officer or wherein its decision is not supported by the evidence in the record. The appeal itself must raise each and every issue that is contested, along with all the arguments and evidence in the record, previously presented to the hearing officer prior to the close of the public hearing on the item, which supports the basis of the appeal; failure to do so will preclude the appellant from raising such issues during the appeal or in court.

(3)    Upon receipt of the appeal and the appeal fee in accordance with subsection (e) of this section a date shall be set for consideration thereof. Not less than 17 days prior thereto, written notice shall be given to: the owner of the deemed approved massage establishment; the property owner; the appellant in those cases where the appellant is not the owner; the adverse party or parties, or to the attorney, spokesperson, or representative of such party or parties; other interested groups and neighborhood associations who have requested notification; and to similar groups and individuals as appropriate, of the date and place of the hearing on the appeal.

(4)    During the hearing on the appeal, the appellant will be limited to issues and evidence presented to the hearing officer prior to the close of the public hearing on the item and raised in the appeal itself. The appellant shall not be permitted to present any other evidence (written, oral, or otherwise) during the appeal process. In considering the appeal, the city council shall determine whether the deemed approved massage establishment conforms to the applicable deemed approved performance standards and conditions of correction (if applicable), and may continue or revoke a deemed approved status; or require such changes in the existing use or impose such reasonable conditions of approval as are, in its judgment, necessary to ensure conformity to said performance standards.

(5)    The decision of the city council on the appeal shall be final.

(d)    Notification of Public Hearing before Hearing Officer. The hearing officer shall notify the owner of each deemed approved activity, and also the property owner if not the same, of the time and place of the public hearing.

(1)    Such notice shall be sent via certified return receipt mail, and shall include notification that the deemed approved status of the deemed approved massage establishment will be considered by the hearing officer.

(2)    The public hearing shall also be noticed by posting notice on the premises of the subject property. The notice shall be placed in the window of the establishment (if a window facing the street is not present, then the notice will be required to be posted onto the exterior of the building). All notices shall advertise the time, date, purpose and location of the public hearing for each particular site. All notices shall be given not less than 10 days prior to the date set for the hearing.

(3)    Notice shall also be given by mail or delivery to all persons shown on the last available equalized assessment roll as owning real property in the city within 300 feet of the subject property; provided, however, that failure to send notice to any such owner where his or her address is not shown in said records shall not invalidate the affected proceedings.

(4)    Such notices shall be given not less than 10 days prior to the date set for the hearing, if such is to be held. Notice by mail is deemed given on the date the notice is placed into the U.S. mail system. Fees for notification shall be in accordance with subsection (e) of this section and paid for by the deemed approved massage establishment in question.

(e)    Fee Schedule. Fees, and regulations pertaining to fees, including the appeal, and reinspection of deemed approved massage establishments shall be in accordance with the city master fee schedule.

(f)    A massage establishment which has had its deemed approved status revoked must immediately cease and desist all massage services and related business operations. No massage establishment which has had its deemed approved status revoked may apply for a new operator’s permit pursuant to SPMC 17.17 through 17.19 for 24 months from the date of revocation. (Ord. No. 2292, § 2, 2016.)

17.45 Violations and penalties.

(a)    Infractions. Any person who operates a massage establishment in a manner which violates, causes or permits another person to violate any provision of this article is guilty of an infraction unless otherwise provided.

(b)    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 article is committed, continued, permitted, or caused by such violator and shall be punished accordingly.

(c)    Any Violation a 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 article, shall be and is declared to be a public nuisance and may be subject to administrative remedies pursuant to Chapter 1A SPMC. In addition, a nuisance may be abated as such by the city after appropriate notice and procedures pursuant to Chapter 24 SPMC.

(d)    Injunction as Additional Remedy. Any violation of any provision of this article 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.

(e)    Penalties. 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.

(f)    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 against the owner of the deemed approved massage establishment, 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. No. 2292, § 2, 2016.)

17.46 Enforcement.

The city manager shall designate the appropriate personnel to enforce the provisions of this article. (Ord. No. 2292, § 2, 2016.)

ARTICLE IV. SWIMMING POOL FENCES

17.48—17.49 Repealed by Ordinance No. 1983.

ARTICLE V. SMOKING—PROHIBITED

17.50 Findings and purpose.

The city council finds that the smoking of tobacco, or any other weed or plant, is a positive danger to health and a material annoyance, inconvenience, discomfort and a health hazard to those who are present in confined and open spaces, and that smoking rates are on the increase among the youth population of Los Angeles County.

In addition, the U.S. Surgeon General and the U.S. Environmental Protection Agency have concluded that secondhand smoke causes lung cancer and heart disease in healthy nonsmokers. In order to promote public health, safety and welfare, the declared purposes of this chapter are to prohibit the smoking of tobacco, or any weed or plant, in public places and places of employment, to protect the public health by restricting public exposure to secondhand smoke, and to restrict youth access to tobacco products, as stated and required in this chapter. (Ord. No. 2161, § 2, 2007.)

17.51 Authority.

This chapter is enacted pursuant to the provisions of Section 118910 of the California Health and Safety Code for the purpose of prohibiting smoking in public places and in places of work in order to eliminate the hazards and nuisance which smoking causes to those who are involuntarily exposed. (Ord. No. 2161, § 2, 2007.)

17.52 Definitions.

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

A.    “Bars” or “drinking establishment” means any establishment where alcoholic beverages and other drinks, including, but not limited to, juice, coffee, tea or soda are sold to the public for on-site consumption.

B.    “Employer” means any person, partnership, corporation, including a municipal corporation, joint venture, business entity, or nonprofit entity who employs the services of one or more individual persons.

C.    “Employee” means any person who is employed by any employer whether full-time, part-time, temporarily or by contract with a third party for direct or indirect monetary wages or profit.

D.    “Enclosed” means closed in by a roof and four walls with appropriate openings for ingress and egress.

E.    “Entertainment facilities” means pool halls, game halls, bingo parlors, bowling alleys, motion picture theaters and similar establishments.

F.    “Parkway” means the portion of a street other than a roadway or a sidewalk, including a median and the area between the curb and the sidewalk, which may include landscaping.

G.    “Restaurant” or “eating establishment” means any place where cooked or otherwise prepared food is served to the public, including a bistro, cafe, catering establishment, coffee shop, cafeteria, cantina, fast food service, luncheonette, soda fountain, tasting room, tavern, or other establishment where cooked or otherwise prepared food is sold to the public.

H.    “School” means any public or private school providing instruction in kindergarten or any of grades one to 12, inclusive, but does not include any private school in which education is primarily conducted in private homes.

I.    “Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated tobacco or plant product, including but not limited to cannabis, intended for inhalation, whether natural or synthetic, in any manner or in any form. “Smoking” includes the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.

J.    “Service area” means any area where one or more persons are awaiting services of any kind, regardless of whether or not such service involves the exchange of money. Such services shall include, but are not limited to, sales of goods, giving information, directions or advices, and transfers of money or goods.

K.    “Transit stop” means any indoor or outdoor area where a mass transit system stops to pick up and drop off passengers. Such transit stops shall include, but are not limited to, any signalized bus stop and commuter rail line station area.

L.    “Workplace” means any enclosed place of employment where two or more employees are assigned to perform work for an employer.

M.    “Vendor-assisted sale” means a purchase requiring a direct, face-to-face exchange between the retailer and the customer, in which the vendor has access to the tobacco product, and assists the customer by supplying the product. The customer does not take possession of the product until it is purchased.

N.    “Tobacco product” means any manufactured substance made from the tobacco plant, including, but not limited to, cigarettes, e-cigarettes, electronic smoking devices (whether or not they actually contain nicotine), cigars, pipe tobacco, or products prepared from tobacco and designed for smoking.

O.    “Electronic smoking device” means an electronic and/or battery-operated device, cartridge or component, the use of which may resemble smoking, which can be used to deliver an inhaled dose of nicotine or other substances, including but not limited to cannabis, to the user in the form of a vapor, including, but not limited to, any device manufactured, distributed, marketed, or sold as an “e-cigarette” or electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, an electronic hookah, alternative nicotine product or any other product name or descriptor. “Electronic smoking device” does not include any product specifically approved by the United States Food and Drug Administration for use in the mitigation, treatment, or prevention of disease. (Ord. No. 2161, § 2, 2007; Ord. No. 2277, §§ 2, 3, 2014; Ord. No. 2322, § 1, 2018.)

17.53 Application to city-owned vehicles, buildings, and facilities.

All city-owned vehicles, and all buildings and facilities owned and controlled by the city, shall be subject to the provisions of this chapter. (Ord. No. 2161, § 2, 2007; Ord. No. 2322, § 2, 2018.)

17.54 Prohibition of smoking in public parks.

It is unlawful for any person to smoke and/or to possess a burning tobacco product, plant, including but not limited to cannabis, or other combustible substance, in or upon any dedicated city park, playground, open spaces directly connected and surrounding public facilities or recreation centers, excluding the smoking of tobacco products from the playing area of the city’s public 18-hole golf course, but not excluding the miniature golf course, restaurant, putting green area and driving range located at the golf course and further, it is unlawful to dispose of lighted or unlighted cigars or cigarettes or cigarette butts in the aforementioned areas other than in designated waste receptacles. (Ord. No. 2161, § 2, 2007; Ord. No. 2322, § 3, 2018.)

17.55 Prohibition of mobile vending of cigarettes.

It is unlawful for a person to engage in retail tobacco sales at other than a fixed location. Itinerant tobacco retailing and tobacco retailing from vehicles are both expressly prohibited. (Ord. No. 2161, § 2, 2007.)

17.56 Prohibition of smoking in public places.

Except as otherwise provided in this chapter, it is unlawful to smoke in all public places within the city, including, but not limited to, the following:

A.    Elevators in buildings generally used by and open to the public, including elevators in offices, hotels, and multifamily buildings;

B.    Entertainment facilities;

C.    Health care facilities and hospitals, as defined in Section 1250 of the California Health and Safety Code;

D.    Parking garages;

E.    Public meeting rooms, including hearing rooms, conference rooms, chambers, and places of public assembly;

F.    Public restrooms;

G.    Service areas;

H.    Theaters and auditoriums, including every publicly or privately owned theater, auditorium, or other enclosed facility which is open to the public for the primary purpose of exhibiting any motion picture, stage drama, musical recital, athletic event, or any other performance or event in all areas except in areas not open to the public. Every owner and/or manager of such theater, auditorium, or other enclosed facility used for the purposes stated herein, shall post signs conspicuously in the lobby stating that smoking is prohibited within the theater, auditorium or facility. This section shall not be construed to prevent smoking by performers in connection with a stage production or by persons making a presentation concerning addiction to tobacco or other drugs;

I.    Restaurants and bars, including outdoor dining areas and patios serving said restaurants and bars, hotel lobbies, and common areas within hotels and motels, excluding guest rooms;

J.    Retail food marketing establishments, including grocery stores, supermarkets and mini-markets;

K.    Museums, libraries and public transportation facilities open to the public;

L.    Any transit stop, commuter rail line station area and/or public transportation facility; and

M.    Vending vehicles, as defined in SPMC 19.49-1 (Mobile food vending). (Ord. No. 2161, § 2, 2007; Ord. No. 2204, § 1, 2010; Ord. No. 2249, § 3, 2013; Ord. No. 2322, § 4, 2018.)

17.56-1 Smoking prohibited on public sidewalks.

Smoking shall be prohibited on any public sidewalk or walkway, or any parkway, curb or gutter. (Ord. No. 2322, § 5, 2018.)

17.57 Reasonable smoking distance required.

Smoking shall be prohibited in any unenclosed area within a distance of 25 feet from an area in which smoking is prohibited under SPMC 17.53 (Application to city-owned vehicles, buildings, and facilities), 17.54 (Prohibition of smoking in public parks), 17.56 (Prohibition of smoking in public places) and 17.58-2 (Prohibition of smoking in the workplace) of Article V (Smoking—Prohibited), Chapter 17 SPMC (Health and Sanitation). (Ord. No. 2204, § 6, 2010; Ord. No. 2322, § 6, 2018.)

17.58 Requirement of vendor-assisted sales.

It is unlawful for any person, business, or tobacco retailer to sell, permit to be sold, or offer for sale any tobacco product by means of a self-service display, cigarette vending machine, or by any means other than vendor-assisted sales. This prohibition shall not apply to tobacco shops and cigar lounges. A “self-service display” is the open display of tobacco products which the public has access to without the intervention of a store employee, including, but not limited to, a rack, shelf, or counter-top display. (Ord. No. 2161, § 2, 2007; Ord. No. 2204, § 3, 2010.)

17.58-1 Purchaser identification.

The seller of any tobacco products shall require photographic identification if a purchaser reasonably appears to be under 27 years of age. In compliance with federal and state law, tobacco products shall not be sold to anyone under 21 years of age. (Ord. No. 2161, § 2, 2007; Ord. No. 2204, § 3, 2010; Ord. No. 2322, § 7, 2018.)

17.58-2 Prohibition of smoking in the workplace.

A.    Except as otherwise provided in this chapter, it is unlawful to smoke in all enclosed workplaces of commercial enterprises, nonprofit entities and all city-owned and managed buildings and vehicles, including but not limited to open office areas, shared offices, private offices, hallways, restrooms, escalators, elevators, stairways, lobbies, reception areas, waiting rooms, classrooms, meeting or conference rooms, and auditoriums.

B.    On-site cafeterias, lunchrooms and lounges shall be deemed workplaces and smoking prohibited therein, whether or not such facilities are open to members of the general public.

C.    Each commercial enterprise, nonprofit entity and the city shall comply with these smoking prohibitions and be responsible for their implementation in the workplace, and “No Smoking” signs shall be posted in the manner prescribed in Section 17.57-3.

D.    Notwithstanding this section, a private residence including either an attached or detached garage shall not constitute a workplace, except when the residence serves as a licensed day care facility. (Ord. No. 2161, § 2, 2007; Ord. No. 2204, § 3, 2010.)

17.58-3 Posting of signs.

A.    Every owner, operator, manager, or other persons having control of a property where smoking is prohibited under this chapter shall conspicuously post signs on-site using a city-provided “No Smoking” sign template with capital letters not less than one-inch in height and the international “No Smoking” symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) on a contrasting background. City staff may use discretion to approve operators’ requests for minor modifications to the appearance of the city-provided “No Smoking” sign on a case-by-case basis.

B.    The “No Smoking” postings may be limited to first floor entrances and exits, lobbies, restrooms, and elevators. (Ord. No. 2161, § 2, 2007; Ord. No. 2204, §§ 3, 4, 2010.)

17.58-4 Structural modifications.

Employers are not required to incur expense to make structural or other physical modifications to comply with this chapter. (Ord. No. 2161, § 2, 2007; Ord. No. 2204, § 3, 2010.)

17.58-5 Enforcement.

A.    The provisions of this chapter shall be enforced by the chief of police of the city or an authorized designee.

B.    The owner, operator or manager of any facility, business or agency shall comply with this chapter as a requirement of receiving a business license to operate in the city. The city manager shall provide business license applicants with copies of this chapter. (Ord. No. 2161, § 2, 2007; Ord. No. 2204, § 3, 2010.)

17.58-6 Violations and penalty.

A.    It is unlawful and an infraction for any owner, operator or manager of a commercial enterprise or nonprofit to violate any of the provisions of this chapter and such violations shall be punished by a fine and bail forfeiture of no less than one hundred dollars.

B.    Any person who violates any provision of this chapter by smoking in a posted “no smoking” area is guilty of an infraction and shall be punished by a fine and bail forfeiture of no less than one hundred dollars.

C.    Any person who violates any provision of this chapter by failing to post or cause to be posted a “no smoking” sign required by this chapter is guilty of a misdemeanor. (Ord. No. 2161, § 2, 2007; Ord. No. 2204, §§ 3, 5, 2010.)

17.58-7 Nonretaliation.

It is unlawful for an employer to discharge or refuse to hire, or in any manner retaliate against a party who files a complaint under this chapter. (Ord. No. 2161, § 2, 2007; Ord. No. 2204, § 3, 2010.)

17.58-8 Exemptions.

A.    This chapter is not intended to regulate smoking on property owned or leased by county, state or federal governmental entities or tobacco and cigar stores.

B.    Any owner, operator or manager of a business or other establishment subject to this chapter may apply to the city council for an exemption or modification to any provision of this chapter due to unusual circumstances or conditions not related to youth access to tobacco products or the public’s exposure to secondhand smoke. Such exemption shall be granted only if the city council finds from the evidence presented by the applicant for exemption either that:

1.    The applicant cannot comply with the provisions of this chapter for which an exemption is requested without incurring expenses for structural or other physical modifications, other than posting signs, to buildings and structures; or

 

2.    Due to such unusual circumstances, the failure to comply with the provision for which the exemption is requested will not result in a danger to health or annoyance, inconvenience or discomfort. (Ord. No. 2161, § 2, 2007; Ord. No. 2204, § 3, 2010.)

ARTICLE VI. HAZARDOUS MATERIALS, SOUTH PASADENA
CERTIFIED UNIFIED PROGRAM AGENCY

17.59 South Pasadena Certified Unified Program Agency.

The city does adopt by reference all applicable state statutes for implementation of Chapter 6.11 of Division 20 of the California Health and Safety Code (Section 25404 et seq.), with respect to formation and implementation of a certified uniform program agency (hereinafter C.U.P.A.). (Ord. No. 2041 § 2; Ord. No. 2204, § 3, 2010.)

17.60 Definitions.

(a)    “City officials” shall mean the city manager or authorized representative.

(b)    “Disclosure form” shall mean the form utilized by the city official.

(c)    “Disclosure information” shall mean information disclosed in the disclosure form and attachments.

(d)    “Disposal” shall mean the discharge, deposit, injection, dumping, spilling, leaking or placing of any hazardous waste into or on any land, air or water so that such hazardous waste or any constituent thereof may enter the environment.

(e)    “Emergency response agencies” shall mean those public agencies, private or commercial under contract to public agencies or persons under the direction of public agencies with a direct responsibility for the abatement of conditions or situations presenting a clear and present danger to the public health, safety and welfare.

(f)    “Emergency contact” shall mean the person designated on a disclosure form to be contacted in an emergency at the site where hazardous materials are used, stored, handled or disposed of. The emergency contact shall be a person knowledgeable about the hazardous materials used, stored, handled or disposed of at the site.

(g)    “Fire chief” shall mean the fire chief of the city or authorized representative.

(h)    “Hazardous materials list” shall mean the list of hazardous materials maintained by the hazardous materials administrator and includes all materials that are required to be disclosed under this division.

(i)    “Hazardous mixture” shall mean a mixture containing more than one percent of one or more materials listed on the hazardous materials list, if the quantity of such mixture used, stored, handled or disposed of on a given site brings the total quantity of any of the hazardous materials present to more than the lower reporting limit for that material as designated in Section 17.61(a).

(j)    “Location” shall mean the specific area within a business site where hazardous materials are used, stored, handled or disposed of.

(k)    “Material safety data sheet” shall mean material safety data sheet prepared pursuant to Section 6390 of the Labor Code or pursuant to the regulations of the Occupational Safety and Health Administration of the U.S. Department of Labor.

(l)    “Person” shall mean an individual, business, trust, firm, joint stock company, corporation, partnership, association, city, county or district.

(m)    “Site” shall mean the physical premises of a business establishment. For each site using, storing, handling or disposing of hazardous materials, a separate disclosure form shall be filed.

(n)    “Trade secrets and proprietary information” shall have the meaning given to it by Section 6254.7 of the Government Code and Section 1060 of the Evidence Code. (Ord. No. 1899, § 1.)

17.61 Hazardous materials list.

For the materials on this portion of the hazardous materials list, disclosure information is required no matter how small the quantity used, stored, handled or disposed of within the city.

(a)    “Hazardous material” shall mean any substance or product found on the California Occupational Safety and Health Administration list or which is listed as a radioactive material set forth in Chapter 1, Title 10, Appendix B, maintained by the Nuclear Regulatory Commission.

(b)    “Hazardous waste” shall mean hazardous or extremely hazardous waste as defined by Sections 25115 and 25117 of the California Health and Safety Code and as set forth in Sections 66680 and 66685 of Title 22 of the California Administrative Code.

(c)    When a new material is added to the hazardous materials list, the fire chief shall require the filing of amended disclosure forms by the person(s) handling the material added to the list within thirty days of notification by direct mail to the fire chief. (Ord. No. 1899, § 2.)

17.62 Filing of a hazardous material disclosure form.

(a)    Any person who is using, storing, or disposing of hazardous mixtures or materials on the materials list and is not otherwise exempted in Section 17.64 shall submit to the fire chief a completed disclosure form along with the fee as established by resolution within sixty days of receipt of the disclosure form.

(b)    Any person(s) required to submit a disclosure form shall submit to the fire chief an amended disclosure form indicating changes in hazardous materials usage. Such changes shall include, but not be limited to:

(1)    The use, storage or disposal of a hazardous mixture or material which has been added to the hazardous materials list;

(2)    Commencing the use, storage or disposal of a hazardous mixture or material that is listed in the hazardous materials list maintained and not exempted in section 17.64 and not reported on the previous disclosure form;

(3)    One hundred percent increase in the use of any one particular hazardous material previously disclosed;

(4)    A change in business address, business name, business ownership, emergency contact person or the nature of the business.

No fee shall be required to be submitted with these amendments. If there have been no changes from the previous filing, no amendments will be required upon the filing of an affidavit so stating.

(c)    Thereafter, a completed disclosure form shall be submitted to the fire chief upon renewal of the business license along with the required fees.

(d)    The disclosure form and any updates or amendments shall be approved by an officer or duly authorized representative of each business under the penalty of perjury.

(e)    Any person who is required to file a hazardous material disclosure form shall appoint an emergency contact plus two alternates who can be contacted in an emergency, and shall provide twenty-four-hour telephone numbers for each emergency contact named. The person shall petition the fire chief for an exemption from this requirement if more than one emergency contact cannot be designated because of company size constraints.

(f)    The fire chief shall maintain a file of all disclosure forms received. The disclosure information shall be confidential if it involves trade secrets and available only to emergency response personnel and city officials in accordance with procedures set forth in Section 17.65.

(g)    Any person who holds a current specific license from the state or federal government for the using, storing, or disposing of radioactive materials shall make that fact known to the fire chief. Upon request, that person shall disclose to the fire chief the identity, quantity and location of all radioactive materials covered under that license. (Ord. No. 1899, § 3.)

17.63 Disclosure form.

(a)    The disclosure form shall be developed by the fire chief and shall be subject to revision semiannually, or more frequently if necessary in the judgment of the fire chief.

(b)    The disclosure form shall include, but shall not be limited to the following:

(1)    The identity of each and every hazardous material used, stored, handled or disposed of on the business site;

(2)    The location of the use, storage, handling or disposal of each and every hazardous material on the business site;

(3)    The maximum quantity of each and every hazardous material used, stored, handled or disposed of on the business site at any given time. Such quantities shall be reported in gallons of a liquid or pounds of a solid or gas;

(4)    Sufficient information on how and where the hazardous materials disclosed are handled or used by the user to allow fire and safety personnel to prepare adequate emergency responses to potential releases of the hazardous materials;

(5)    Sufficient information on any releases of the hazardous materials into the air, water, sewers, or land to permit the city to understand the sources and content of hazardous material releases;

(6)    A material safety data sheet for the listed substance.

(c)    Upon request all users must provide information in addition to that required in the disclosure form hereof as follows:

(1)    To the fire department any information determined by the fire department to be necessary to protect the pu-blic health, safety or the environment; and

(2)    To any physician where the physician determines that such information is necessary to the medical treatment of his or her patient. (Ord. No. 1899, § 4.)

17.64 Exemptions from disclosure.

The following materials, persons or entities shall be exempt from disclosure under this chapter:

(a)    A material designated as a hazardous material by this chapter solely by its presence on the Nuclear Regulatory Commission list of radioactive materials shall be exempt only from the requirement that a material safety data sheet prepared pursuant to Section 6390 of the California Labor Code or pursuant to the regulations of the Occupational Safety and Health Administration of the United States Department of Labor be submitted with the disclosure form;

(b)    Hazardous substances contained in food, drug, cosmetic or tobacco products;

(c)    Hazardous substances contained solely in consumer products packaged for use by and distributed to the general public;

(d)    Any person, while engaged in the transportation of hazardous materials, including storage directly incidental thereto, provided that such materials are accompanied by shipping papers prepared in accordance with the provisions of 49 Code of Federal Regulations, subchapter c;

(e)    No MSDS shall be required for any hazardous substance for which an MSDS is not available at the time disclosure is required; provided, however, that such MSDS shall be submitted to the fire chief within fifteen days after receipt by the user of the MSDS. Nothing in this subsection shall be deemed to exempt from disclosure the remaining information;

(f)    All businesses exempted under this section or requesting an exemption shall be subject to inspection by the fire chief or his representatives in accordance with the California Code of Civil Procedures, Section 1822.50, et seq. (Ord. No. 1899, § 5.)

17.65 Trade secrets.

(a)    If a user believes that a request for information made either by the disclosure form or otherwise pursuant to this chapter involves the release of a trade secret, the user shall so notify the fire chief in writing. As used in this chapter, trade secret shall have the meaning given to it by Section 6254.7 of the Government Code and Section 1060 of the Evidence Code.

(b)    Subject to the provisions of this section, the fire chief shall protect from disclosure any trade secret coming into its possession when requested to do so in writing by the user.

(c)    Any information reported to or otherwise obtained by the fire chief, or any of its representatives or employees, which is exempt from disclosure pursuant to subsection (b) of this section shall not be disclosed to anyone except:

(1)    To an officer or employee of the city, the state of California, or the United States of America, in connection with the official duties of such officer or employee under any law for the protection of health, or to contractors with the city and their employees if in the opinion of the fire chief, such disclosure is necessary and required for the satisfactory performance of a contract for performance of work; or

(2)    To any physician where the physician determines that such information is necessary to the medical treatment of his or her patient.

(d)    For the purposes of this section, fire and emergency response personnel and county health personnel operating within the jurisdiction of the city shall be considered employees of the city.

(e)    Any officer or employee of the city, or former officer or employee, who by virtue of such employment or official position has obtained possession of or has access to information, the disclosure of which is prohibited by this section, and who, knowing the disclosure of the information is prohibited, knowingly and wilfully discloses the information in any manner to any person not entitled to receive it, shall be guilty of a misdemeanor. Any contractor with the city and any employee of such contractor, who has been furnished information as authorized by this section, shall be considered to be an employee of the city for purposes of this section. Any physician who has been furnished information or who has obtained information pursuant to subsection (b) of this section and who knowingly and wilfully discloses the information, shall be guilty of a misdemeanor.

(f)    Information certified by appropriate officials of the United States, as necessarily kept secret for national defense purposes, shall be accorded the full protections against disclosure as specified by such official or in accordance with the laws of the United States.

(g)    Upon receipt of a request for the release of information to the public which includes information which the user has notified the fire chief is a trade secret pursuant to subdivision (a) of this section, the fire chief shall notify the user in writing of the request by certified mail. The fire chief shall release the information thirty days after the day of mailing the notice, unless prior to the expiration of the thirty days, the user institutes an action in an appropriate court for a declaratory judgment that the information is subject to protection under subdivision (b) of this section and/or an injunction prohibiting disclosure of the information to the general public.

(h)    The provisions of this section shall not permit a user to refuse to disclose information required pursuant to this chapter to the fire chief. (Ord. No. 1899, § 6.)

17.66 Enforcement and penalties.

(a)    The fire chief is authorized and empowered to enforce the provisions of this division. The enforcement may include the inspection of hazardous materials in use, storage, or disposal; review of hazardous materials records; the sampling and testing of hazardous materials; and other activities directly related to the enforcement of this division. No person shall obstruct or interfere with the fire chief or his authorized representative in the performance of these duties pursuant to the provisions of the California Code of Civil Procedure, Section 1822.50 et seq.

(b)    To minimize the expenses and manpower requirements needed to support enforcement efforts, the fire chief shall utilize the resources of existing enforcement agencies such as inspectors from the fire department or the city’s inspection division when possible.

(c)    Any person who knowingly violates any provision of Sections 17.60—17.67 shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for a period not exceeding six months, or by both such fine and imprisonment. Each day on which a violation occurs shall be considered a separate violation. This shall be in addition to the provisions of Section 17.70. (Ord. No. 1899, § 7.)

17.67 Fees.

(a)    The city council shall establish by resolution a schedule of fees to be paid by persons using, storing or disposing of hazardous materials which is sufficient to cover the costs to the city of administering this division. The cost of implementing activities related to this division by other emergency response agencies shall be borne by those agencies.

(b)    If a disclosure form or the assessed fee is not filed by the date specified by the fire chief and annually thereafter, a late charge of twenty-five percent of the assessed fee will be added for the first thirty days. Following notification of the recalcitrant person by certified mail, each subsequent thirty-day delay will be assessed an additional late charge of twenty-five percent of the fee.

(c)    Any person required by this chapter to have a permit shall pay the established permit fee as it relates to the implementation of any and all C.U.P.A. elements. C.U.P.A. elements shall include but not be limited to those programs identified in Chapter 6.11, Division 20 of the California Health and Safety Code. The state-mandated surcharge and county fees shall be included in the permit fee. The permittee shall pay the amount as designated in the fee resolution, as may be amended by city council from time to time. In addition to the remedies set forth in the Health and Safety Code, further remedies, fees or restitution authorized by this code, not inconsistent with the state law, shall apply to any code violations. (Ord. No. 1899, § 8; Ord. No. 2041 § 3.)

17.70 Cleanup by fire department—Costs.

(a)    The fire department is authorized to clean up or abate the effects of any hazardous material deposited upon or onto public or private property or facilities of the city, and any person or persons who intentionally or negligently caused such deposit shall be liable for the payment of all costs incurred by the fire department as a result of such clean up or abatement activity. The remedy provided by this section shall be in addition to any other remedies provided by law.

(b)    For purposes of this section “hazardous materials” shall be defined as any substance or materials in a quantity or form which, in the determination of the fire chief or his authorized representative, poses an unreasonable and imminent risk to the life, health or safety of persons or property, or to the ecological balance of the environment, and shall include but not be limited to such substances as explosives, radioactive materials, petroleum or petroleum products or gases, poisons, etiologic (biologic) agents, flammables and corrosives.

(c)    For the purposes of this section, “costs incurred by the fire department” shall include, but not be limited to the following: actual labor costs of city personnel, including all benefits, administrative overhead, cost of equipment operation, cost of materials obtained directly by the city, and cost of any contract, labor and materials. Costs shall include charges for mutual aid teams from other cities and emergency response teams required for present and future cleanup.

(d)    The authority to recover costs under this section shall not include actual fire suppression services which are normally or usually provided by the fire department. (Ord. No. 1900, § 1.)

ARTICLE VII. RAT CONTROL

17.71 “Ratproofing” defined.

“Ratproofing,” as mentioned in this chapter, shall be interpreted to mean a continuous masonry foundation of the size and depth required by the Building Code and other requirements for a new building of the same occupancy as regards clearance beneath wood joists, wall coverings adjacent to the top to the foundation and protection of roof and foundation openings. (Ord. No. 910, § 5; Ord. No. 1983, § 62.)

17.72 Interference with or disobedience to health officer.

No person shall refuse, resist or attempt to resist the entrance of the health officer into any railway car, vehicle, building, room, lot or other place in the city, in the performance of his duties, nor shall any person refuse to obey any lawful order of the health officer made in the performance of his duties within the power conferred upon him by state law or by this chapter. (Ord. No. 910, § 1; Ord. No. 1983, § 62.)

17.73 Rat, etc., breeding conditions; rat harborage.

It is unlawful for any person to maintain any building, room, lot, premises, vehicle or place in such an unsanitary condition as to permit the breeding or harboring therein or thereon of flies, mice, rats, bedbugs, cockroaches, lice, fleas or any vermin. It is unlawful for any person to permit an accumulation of material that may serve as a harborage for rats or mice unless such material is elevated not less than eighteen inches aboveground, with a clear intervening space thereunder, except for supporting structures. (Ord. No. 910, § 6; Ord. No. 1983, § 62.)

17.74 Notice to ratproof buildings or portions thereof.

When determined by the health officer or his duly authorized representative that any building or structure constitutes a rat harborage, he may serve upon the person owning or in charge or control thereof a notice in writing to ratproof such building or structure within a reasonable time as stated in such notice.

When determined by the health officer or his duly authorized representative that it is unnecessary to ratproof such building or structure in its entirety, he may specify in such notice that portion which is to be ratproofed. (Ord. No. 910, § 3; Ord. No. 1983, § 62.)

17.75 Ratproofing of buildings used for grain storage, handling, etc.

No person shall use any building, structure or portion thereof for the storage, handling, preparation or sale of grain or grain products which, in the opinion of the health officer, is or is likely to become infested with rats unless such building, structure or portion thereof is ratproofed. (Ord. No. 910, § 2; Ord. No. 1983, § 62.)

17.76 Ratproofing of slaughterhouses, bakeries, etc.

No person shall use any building, structure or portion thereof for a slaughterhouse, packing house, bakery or for the manufacture, preparation, storage, handling, or display of any food or food products for human or animal consumption which, in the opinion of the health officer, is or is likely to become infested with rats, unless such building, structure or portion thereof is ratproofed. (Ord. No. 910, § 4; Ord. No. 1983, § 62.)

ARTICLE VIII. SMOKE-FREE HOUSING

17.80 Purpose.

It is the intent of the city council of South Pasadena in enacting this article to provide for the public health, safety, and welfare by discouraging the inherently dangerous behavior of smoking; by protecting children from exposure to smoking where they live and play; and by protecting the public from nonconsensual exposure to secondhand smoke in and around their homes. (Ord. No. 2205, § 1, 2010; Ord. No. 2322, § 8, 2018.)

17.81 Definitions.

For the purposes of this article, the following definitions shall govern unless the context clearly requires otherwise:

(a)    “Adjacent property” means any unenclosed area of property, publicly or privately owned, that abuts a multi-unit residence but does not include property containing detached single-family homes.

(b)    “Common area” means every enclosed area or unenclosed area of a multi-unit residence that residents of more than one unit of that multi-unit residence are entitled to enter or use, including, for example, halls and paths, lobbies and courtyards, elevators and stairs, community rooms and playgrounds, gym facilities and swimming pools, parking garages and parking lots, shared restrooms, shared laundry rooms, shared cooking areas, and shared eating areas.

(c)    “Common interest complex/mix-use” means a multi-unit residence that is a condominium project, a community apartment project, a stock cooperative, or a planned development as defined by California Civil Code Section 1351.

(d)    “Enclosed area” means an area in which outside air cannot circulate freely to all parts of the area, and includes an area that has:

(1)    Any type of overhead cover whether or not that cover includes vents or other openings and at least three walls or other vertical boundaries of any height whether or not those boundaries include vents or other openings; or

(2)    Four walls or other vertical boundaries that exceed six feet in height whether or not those boundaries include vents or other openings.

(e)    “Landlord” means any person who owns property let for residential use, any person who lets residential property, and any person who manages such property, except that “landlord” does not include a master tenant who sublets a unit as long as the master tenant sublets only a single unit of a multi-unit residence.

(f)    “Multi-unit residence” means property containing two or more units, except the following specifically excluded types of housing:

(1)    A hotel or motel that meets the requirements set forth in California Civil Code Section 1940(b)(2);

(2)    A mobile home park;

(3)    A campground;

(4)    A marina or port;

(5)    A single-family home; or

(6)    A single-family home with a detached or attached in-law or second unit when permitted pursuant to California Government Code Sections 65852.1, 65852.150, 65852.2 or an ordinance of the city adopted pursuant to those sections.

(g)    “New unit” means a unit that is issued a certificate of occupancy or passes final inspection more than one hundred eighty days after September 4, 2010 and also means a unit that is let for residential use for the first time more than one hundred eighty days after September 4, 2010.

(h)    “Nonsmoking area” means any enclosed area or unenclosed area of a multi-unit residence in which smoking is prohibited by:

(1)    This article or other law;

(2)    By binding agreement relating to the ownership, occupancy, or use of real property; or

(3)    By designation of a person with legal control over the area.

In the case of a smoking prohibition established only by private agreement or designation and not by this article or other law, it shall not be a violation of this article for a person to engage in smoking or to allow smoking in that area unless:

(1)    The person knows that smoking is not permitted; or

(2)    A reasonable person would know that smoking is not permitted.

(i)    “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity including government agencies.

(j)    “Rental complex” means a multi-unit residence for which fifty percent or more of units are let by or on behalf of the same landlord.

(k)    “Smoke” means the gases, particles, or vapors released into the air as a result of combustion, electrical ignition or vaporization, when the apparent or usual purpose of the combustion, electrical ignition or vaporization is human inhalation of the byproducts, except when the combusting or vaporizing material contains no tobacco or nicotine and the purpose of inhalation is solely olfactory, such as, for example, smoke from incense. The term “smoke” includes, but is not limited to, tobacco smoke, electronic cigarette vapors, marijuana smoke, and crack cocaine smoke.

(l)    “Smoking” means engaging in an act that generates smoke, such as, for example: possessing a lighted pipe, a lighted hookah pipe, a lighted cigar, an operating electronic cigarette or a lighted cigarette of any kind; or lighting or igniting a pipe, a hookah pipe, a cigar, or a cigarette of any kind.

(m)    “Unenclosed area” means any area that is not an enclosed area.

(n)    “Unit” means a personal dwelling space, even where lacking cooking facilities or private plumbing facilities, and includes any associated exclusive-use enclosed area or unenclosed area, such as, for example, a private balcony, porch, deck, or patio. “Unit” includes without limitation: an apartment; a condominium; a townhouse; a room in a long-term health care facility, assisted living facility, or hospital; a room in a single room occupancy (“SRO”) facility; a room in a homeless shelter; a mobile home; a camper vehicle or tent; a single-family home; and an in-law or second unit. Unit includes a new unit. (Ord. No. 2205, § 1, 2010.)

17.82 Smoking prohibited in common areas.

(a)    Smoking is prohibited in all common areas pursuant to Section 17.90 except that a person with legal control over a common area, such as, for example, a landlord or homeowners’ association, may designate a portion of the common area as a designated smoking area provided that at all times the designated smoking area complies with subsection (b) below.

(b)    A designated smoking area:

(1)    Must be an unenclosed area.

(2)    Must be located at least twenty-five feet from any enclosed area that is a nonsmoking area. A person with legal control over a common area in which a designated smoking area has been designated shall modify, relocate or eliminate that designated smoking area so as to maintain compliance with the requirements of this subsection as laws change, as binding agreements are created, and as nonsmoking areas on neighboring property are established.

(3)    Must be at least twenty-five feet from unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including, for example, playgrounds, tennis courts, swimming pools, and school campuses.

(4)    Must be no more than ten percent of the total unenclosed area of the multi-unit residence for which it is designated.

(5)    Must have a clearly marked perimeter.

(6)    Must be identified by conspicuous signs.

(c)    No person with legal control over a common area in which smoking is prohibited by this article or other law shall knowingly permit the presence of ash trays, ash cans, or other receptacles designed for or primarily used for disposal of smoking waste within the area.

(d)    Clear and unambiguous “No smoking” signs shall be posted in sufficient numbers and locations to make common areas where smoking is prohibited by this article or other law obvious to a reasonable person. The “No smoking” sign template shall have letters of no less than one inch in height and contain the international “No smoking” symbol (consisting of a pictorial representation of a burning cigarette enclosed in a red circle with a red bar across it) on a contrasting background. Such signs shall be maintained by the person or persons with legal control over the common areas. The absence of signs shall not be a defense to a violation of any provision of this article. (Ord. No. 2205, § 1, 2010.)

17.83 Nonsmoking buffer zones.

(a)    Smoking is prohibited in unenclosed areas of multi-unit residence, including balconies, porches, decks, and patios, within twenty-five feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a nonsmoking area.

(b)    Smoking is prohibited in unenclosed areas of adjacent property within twenty-five feet in any direction of any doorway, window, opening, or other vent into an enclosed area that is a nonsmoking area.

(c)    Subsections (a) and (b) above do not apply to a person who is smoking in the restricted buffer zone area for less than a minute while actively passing on the way to another destination, and who does not enter the buffer zone area while smoking more than twice per day.

(d)    Notwithstanding any other provision of this article, smoking is prohibited in all exclusive-use unenclosed areas associated with a unit, such as, for example, a private balcony, porch, deck, or patio. (Ord. No. 2205, § 1, 2010.)

17.84 Smoking restrictions in new units of multi-unit residences.

(a)    All new units of a multi-unit residence are hereby designated nonsmoking units, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio; and including without limitation new units in a rental complex and new units in a common interest complex/mix-use.

(b)    Smoking in a designated nonsmoking unit is a violation of this article as provided in Section 17.90. (Ord. No. 2205, § 1, 2010.)

17.85 Nonsmoking designations for existing units of a common interest complex/mix-use.

(a)    All units of a common interest complex/mix-use that are not new units, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of September 4, 2013; provided, however, that a lesser percentage of units may be designated nonsmoking units if a common interest complex/mix-use fully complies with subsection (c) below.

(b)    Smoking in a designated nonsmoking unit is a violation of this article as provided in Section 17.90.

(c)    By a vote of the membership as provided in subsection (c)(1) below, a common interest complex/mix-use may choose to designate fewer than one hundred percent of existing units as nonsmoking units by fully complying with the requirements stated in subsections (c)(1) through (4) below. Otherwise subsection (a) above shall apply.

(1)    A vote by the membership on the threshold question of allowing less than one hundred percent of units to be designated nonsmoking units must take place before June 1, 2013.

(2)    Up to one hundred percent, but no less than eighty percent, of units that are not new units, including, for example, any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, shall be permanently designated as nonsmoking units.

(3)    Where possible, best efforts shall be made to group nonsmoking units together, both horizontally and vertically, and physically separate them from units where smoking may be allowed.

(4)    In the event of a change of owner or lease/rental tenant in a designated smoking unit in the common interest complex/mix-use, the unit and any associated exclusive-use enclosed areas or unenclosed areas shall then be designated as a nonsmoking unit in order to meet the percentage designation or for grouping of units.

(5)    No later than September 4, 2013 the final designations must be made and the following must be made available for city inspection in accordance with Section 17.91:

(A)    A description of each designated nonsmoking unit sufficient to readily identify the unit; and

(B)    A diagram depicting the location of the designated nonsmoking units in relation to all other units. (Ord. No. 2205, § 1, 2010.)

17.86 Nonsmoking designations for existing units of a rental complex.

(a)    All units of a rental complex that are not new units, including any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, are hereby designated nonsmoking units as of January 4, 2013; provided, however, that a lesser percentage of units may be designated nonsmoking units if a landlord fully complies with subsection (d) below.

(b)    Smoking in a designated nonsmoking unit is a violation of this article as provided in Section 17.90.

(c)    Except if a landlord fully complies with subsection (d) below, at least sixty days before January 4, 2013, the landlord shall provide each tenant with:

(1)    A written notice clearly stating that all units, including the tenant’s unit, are designated nonsmoking units and that smoking in a unit will be illegal as of 17.90(c), and

(2)    A copy of this article.

(d)    A landlord may choose to designate fewer than one hundred percent of existing units that are not new units of a rental complex as nonsmoking units by fully complying with the requirements stated in Section 17.87(d)(1) through (7) below. However, subsection (a) above shall apply whenever a landlord takes no action or only partially complies with the requirements of this subsection. (Ord. No. 2205, § 1, 2010.)

17.87 Designation of nonsmoking units.

The following timeline will be observed in designating nonsmoking units:

(a)    On or before November 4, 2012 the landlord must notify tenants of proposed designation of nonsmoking units.

(b)    On or before December 4, 2012, the landlord must notify tenants of final designation of nonsmoking units.

(c)    On or before January 4, 2013, the landlord must have on file and make available for inspection by city staff designation documents.

(d)    On Sept. 4, 2013, it shall be unlawful to smoke in a nonsmoking unit.

(1)    The landlord shall permanently designate up to one hundred percent of units, but no less than eighty percent of units, including, for example, any associated exclusive-use enclosed areas or unenclosed areas, such as, for example, a private balcony, porch, deck, or patio, as nonsmoking units by the landlord.

(2)    To the maximum extent practicable, nonsmoking units must be grouped together both horizontally and vertically and physically separated from units where smoking may be allowed. Where possible all units where smoking may be allowed shall be in a single building of a multi-building multi-unit residence.

(3)    No later than January 4, 2013 a landlord who chooses to designate fewer than one hundred percent of the units of a multi-unit residence as nonsmoking shall have available for city inspection the following in accordance with Section 17.91:

(A)    A description of each designated nonsmoking unit sufficient to identify the unit; and

(B)    A diagram depicting the location of the designated nonsmoking units in relation to all other units.

(4)    At least sixty days before preparing the nonsmoking unit designations required by subsection (d)(3) above, the landlord shall provide each tenant with:

(A)    A written notice of the proposed designations, clearly stating that smoking in a unit which is designated as a nonsmoking unit will be illegal as of Section 17.90(c), and inviting comments on the proposed designations of nonsmoking units within the requisite timeline;

(B)    A diagram depicting the location of the designated nonsmoking units in relation to all other units; and

(C)    A copy of this article.

(5)    A landlord may modify the proposed designations based upon comments received from tenants.

(6)    At least thirty days prior to final designation of the nonsmoking units required by subsection (d)(3) above, the landlord shall provide all tenants written notice of the final designations clearly stating that smoking in a designated nonsmoking unit will be illegal as of Section 17.90(c), and a copy of the final documents pursuant to Section 17.91 of this article. These final designations may differ from the proposed designations on which tenants were invited to comment.

(7)    A unit in a rental complex for which a landlord is required to have available information pursuant to Section 17.91 of this article but for which such information, for any reason, is not fully and timely completed is hereby designated as a nonsmoking unit as of January 4, 2013. (Ord. No. 2205, § 1, 2010.)

17.88 Lease terms for all new and existing units in rental complexes.

(a)    Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed, or continued month-to-month after September 4, 2012, shall include the provisions set forth in subsection (b) below on the earliest possible date when such an amendment is allowable by law when providing the minimum legal notice.

(b)    Every lease or other rental agreement for the occupancy of a unit in a rental complex, including, for example, new units and existing units, entered into, renewed, or continued month-to-month after September 4, 2012, shall be amended to include the following provisions:

(1)    A clause providing that as of September 4, 2013, it is a material breach of the agreement to allow or engage in smoking in the unit unless the landlord has supplied written notice that the unit has not been designated a nonsmoking unit and no other prohibition against smoking applies. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in the unit as of September 4, 2013 unless landlord has provided written notice that the unit has not been designated a nonsmoking unit and smoking in the unit is not otherwise prohibited by this agreement, other agreements, or by law.”

(2)    A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property other than a designated smoking area. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to engage in smoking in any common area of the property, except in an outdoor designated smoking area, if one exists.”

(3)    A clause providing that it is a material breach of the agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property. Such a clause might state, “It is a material breach of this agreement for tenant or any other person subject to the control of the tenant or present by invitation or permission of the tenant to violate any law regulating smoking while anywhere on the property.”

(4)    A clause expressly conveying third-party beneficiary status to all occupants of the rental complex as to the smoking provisions of the agreement. Such a clause might state, “Other occupants of the property are express third-party beneficiaries of those provisions in this agreement that concern smoking. As such, other occupants of the property may seek to enforce such provisions by any lawful means, including by bringing a civil action in a court of law.”

(c)    Whether or not a landlord complies with subsections (a) and (b) above, the clauses required by those subsections shall be implied and incorporated by law into every agreement to which subsections (a) or (b) apply and shall become effective as of the earliest possible date on which the landlord could have made the insertions pursuant to subsections (a) or (b).

(d)    A tenant who breaches a smoking provision of a lease or other rental agreement for the occupancy of a unit in a rental complex, or who knowingly permits any other person subject to the control of the tenant or present by invitation or permission of the tenant, shall be liable for the breach to: (i) the landlord; and (ii) any occupant of the rental complex who is exposed to smoke or who suffers damages as a result of the breach.

(e)    This article shall not create additional liability in a landlord to any person for a tenant’s breach of any smoking provision in a lease or other rental agreement for the occupancy of a unit in a rental complex if the landlord has fully complied with this section and Section 17.86.

(f)    Failure to enforce any smoking provision required by this article shall not affect the right to enforce such provision in the future, nor shall a waiver of any breach constitute a waiver of any subsequent breach or a waiver of the provision itself. (Ord. No. 2205, § 1, 2010.)

17.89 Additional duties—Landlord of rental complex with less than one hundred percent nonsmoking units.

A landlord of a rental complex with less than one hundred percent nonsmoking units shall:

(a)    Provide to every prospective tenant, prior to entering into a new lease or other rental agreement for the occupancy of a unit in a rental complex, a copy of the designation documents pursuant to Section 17.86 describing each designated nonsmoking unit with an accompanying diagram depicting the location of nonsmoking units in relation to all other units and any designated smoking areas.

(b)    Keep on file at the rental office or property manager’s office and make available for inspection upon request of the tenants, a copy of the designation documents pursuant to Section 17.86 describing each designated nonsmoking unit with an accompanying diagram depicting the location of nonsmoking units in relation to all other units and any designated smoking areas. (Ord. No. 2205, § 1, 2010.)

17.90 Smoking prohibited by law in certain areas.

(a)    Smoking in a common area, on or after September 4, 2010, other than in a designated smoking area established pursuant to Section 17.82, is a violation of this article.

(b)    Smoking in a new unit, on or after September 4, 2010, is a violation of this article.

(c)    Smoking in a designated nonsmoking unit, on or after September 4, 2013, is a violation of this article.

(d)    No person shall engage in smoking in any nonsmoking area.

(e)    No person with legal control over any nonsmoking area shall permit smoking in the nonsmoking area, except as provided in Section 17.88(e). (Ord. No. 2205, § 1, 2010.)

17.91 Required documents available for city inspection.

(a)    Required records by this article must be made available for city inspection upon request by personnel of the city of South Pasadena planning and building department, including all material and information required by this article and such other materials and information as the city of South Pasadena planning and building department deems necessary for the administration and enforcement of this article.

(b)    All material and information required pursuant to this article constitute disclosable public records and are not private or confidential. (Ord. No. 2205, § 1, 2010.)

17.92 Smoking and smoke generally.

(a)    The provisions of this article are restrictive only and establish no new rights for a person who engages in smoking. Notwithstanding (1) any provision of this article or other provisions of this code; (2) any failure by any person to restrict smoking under this article; or (3) any explicit or implicit provision of this code that allows smoking in any place, nothing in this code shall be interpreted to limit any person’s legal rights under other laws with regard to smoking, including, for example, rights in nuisance, trespass, property damage, and personal injury or other legal or equitable principles.

(b)    For all purposes within the jurisdiction of the city of South Pasadena, nonconsensual exposure to smoke occurring on or drifting into residential property is a nuisance, and the uninvited presence of smoke on residential property is a nuisance and a trespass. (Ord. No. 2205, § 1, 2010; Ord. No. 2322, § 9, 2018.)

17.93 Penalties and enforcement.

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

(b)    Every instance of smoking in violation of this article is an infraction subject to a one hundred dollar fine. Other violations of this article may, in the discretion of the city prosecutor, be prosecuted as infractions or misdemeanors when the interests of justice so require. Enforcement of this chapter shall be the responsibility of the city manager, community improvement coordinator/code enforcement official and/or any peace officer.

(c)    Violations of this article are subject to a civil action brought by the city of South Pasadena, punishable by a civil fine not less than two hundred fifty dollars and not exceeding one thousand dollars per violation.

(d)    No person shall intimidate, harass, or otherwise retaliate against any person who seeks compliance with this article. Moreover, no person shall intentionally or recklessly expose another person to smoke in response to that person’s effort to achieve compliance with this article. Violation of this subsection shall constitute a misdemeanor.

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

(f)    Any violation of this article is hereby declared to be a public nuisance.

(g)    In addition to other remedies provided by this article or otherwise available at law or in equity, any violation of this article may be remedied by a civil action brought by the city attorney, including, without limitation, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief.

(h)    Any person, including a legal entity or organization, acting for the interests of itself, its members, or the general public may bring a civil action for injunctive relief to prevent future such violations or sue to recover such actual or statutory damages as he or she may prove.

(i)    Except as otherwise provided, enforcement of this article is at the sole discretion of the city of South Pasadena. Nothing in this article shall create a right of action in any person against the city of South Pasadena or its agents to compel public enforcement of this article against private parties. (Ord. No. 2205, § 1, 2010.)

17.94 Private enforcement.

(a)    Any person, including a legal entity or organization or a government agency, acting for the interests of itself, its members, or the general public may bring a civil action to enforce this article. Upon proof of a violation, a court shall award the following:

(1)    Damages in the amount of either:

(A)    Upon proof, actual damages; or

 

(B)    With insufficient or no proof of damages, five hundred dollars for each violation of this article (hereinafter “statutory damages”). Each day of a continuing violation shall constitute a separate violation. Notwithstanding any other provision of this article no person suing on behalf of the general public shall recover statutory damages based upon a violation of this article if a previous claim brought on behalf of the general public by another person for statutory damages and based upon the same violation has been adjudicated, whether or not the person bringing the subsequent claim was a party to the prior adjudication.

(2)    Exemplary damages, where it is proven by clear and convincing evidence that the defendant is guilty of oppression, fraud, malice, retaliation, or a conscious disregard for the public health.

(b)    The person may also bring a civil action to enforce this article by way of a conditional judgment or an injunction. Upon proof of a violation, a court shall issue a conditional judgment or an injunction.

(c)    Notwithstanding any legal or equitable bar against a person seeking relief on its own behalf, a person may bring an action to enforce this article solely on behalf of the general public. When a person brings an action solely on behalf of the general public, nothing about such an action shall act to preclude or bar the person from bringing a subsequent action based upon the same facts but seeking relief on his, her or its own behalf.

(d)    Nothing in this article prohibits a person from bringing a civil action in small claims court to enforce this article, so long as the amount in demand and the type of relief sought are within the jurisdictional requirements of that court. (Ord. No. 2205, § 1, 2010.)