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HomeMy WebLinkAboutOrdinance No. 11-O17ORDINANCE NO. 11-017 AN ORDINANCE AMENDING ARTICLE IX OF CHAPTER 18 OF THE AZUSA MUNICIPAL CODE PERTAINING TO THE REGULATION OF MASSAGE TECHNICIANS AND MASSAGE ESTABLISHMENTS WHEREAS, the City of Azusa ("City") is authorized by the California Constitution and Government Code Section 51030 et seq., to regulate massage businesses by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of massage businesses; and WHEREAS, massage businesses and other specified personal or professional services businesses are businesses which involve significant intimate contact between persons which create opportunities for acts of prostitution and other unlawful sexual activity to occur; and WHEREAS, Article IX of Chapter 18 of the Azusa Municipal Code currently regulates massage businesses and massage technicians to reduce the risk of illicit activity; and WHEREAS, the California Legislature adopted Senate Bill 731 ("SB 731") that amends sections of the California Business and Professions Code relating to massage therapy, and creates a state -organized non-profit organization, the California Massage Therapy Council ("CAMTC") that may issue massage certifications to massage technicians; and WHEREAS, SB 731 limits the ability of cities to regulate the operations of massage businesses employing only CAMTC-certified massage technicians, including preempting most local licensure requirements and some land use regulations; and WHEREAS, the City wishes to amend the Azusa Municipal Code to ensure the City regulates massage technicians, massage businesses, and other specified professional services businesses in compliance with the provisions of SB 731. NOW, THEREFORE, BE IT ORDAINED by the City Council of the City of Azusa as follows: SECTION 1. Article IX of Chapter 18 of the Azusa Municipal Code is hereby amended in its entirety as follows: See. 18-566. - Definitions. The following words, terms, and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: 45635.01000\5770972.3 Applicant means any person who applies for a permit as required by this article. Bath means the activity of providing facilities for steam baths; electric light baths; electric cup baths; shower baths; sponge baths; sunbaths; mineral baths; Russian, Swedish or Turkish baths; any form of public bathing which has, in connection with it, a steam room, dry heat room, plunge, shower bath or sleeping accommodations; or any other type of bath for treatment of the human body. Business Licensing Section means the Business Licensing Section of the City of Azusa Finance Department. California Massage Therapy Council means the state -organized non-profit organization created to regulate the massage industry as set forth in Chapter 10.5 of Division 2 of the Business and Professions Code of the state (commencing with Section 4600). Chief of Police means the Chief of Police of the City of Azusa or his or her designated representative. City Manager means the City Manager of the City of Azusa or his or her designated representative. City Council or Council means the City Council of the City of Azusa. Conviction or Convicted means a plea or verdict of guilty or a conviction following a plea of nolo contendre. Employ shall include contracting with independent contractors. Employee shall include every owner, partner, manager, supervisor, independent contractor and worker, whether paid or not, who renders personal services of any nature in the operation of a massage business. Health department means the department of health services of the county. Manager means the person(s) designated by the operator of the massage business to act as the representative and agent of the operator in managing day-to-day operations with the same liabilities and responsibilities as the operator. Evidence of management includes, but is not limited to, evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules or purchase supplies. A manager may also be an owner. A massage technician permit is not required to be a manager. A manager may not perform any massage services without first meeting the standards and qualifications of Section 18-631 and obtaining a technician permit or being exempt from the permitting requirement pursuant to Section 18-636. 45635.01000\5770972.3 Massage means any method of pressure on or friction against or stroking, kneading, rubbing, tapping, pounding, vibrating, manipulating or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus or other appliance or device with or without such supplementary aids such as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or similar preparations. Massage includes but is not limited to acupressure. Massage business means any business conducted within the City of Azusa, 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, administration to another person of a massage, bath or health treatment involving massages or baths. Massage technician means any person who, for any form of consideration whatsoever, gives or administers to another person a massage. The terms "massage therapist" and "massage practitioner" are included within this definition for the purposes of this chapter. This definition shall also include anyone operating pursuant to a valid "certified massage therapist" or "certified massage practitioner" certification issued by the California Massage Therapy Council. Off -premises massage business means the activity of providing massage services or massage facilities at a location other than premises licensed by a permit from the supervisor. Off -premises massage technician means a massage technician who gives a massage at a location other than the premises licensed by a permit from the supervisor. Operator means all persons who have an ownership interest in the massage business who are responsible for its day-to-day operations. Operator's permit means the permit required pursuant to the provisions of this chapter to operate or manage a massage business. Permit, for a massage business, massage technician or off -premises massage technician, the term "permit" means the permit required by this article to be obtained from the supervisor. Person means an 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 Azusa. Recognized school of massage, means any school or institution of learning which teaches, through state certified instructors, the theory, ethics, practice, profession or work of massage, which school or institution complies with California Education Code §§ 94310 or 94311, and which requires a resident course of study before the student shall be 45635.010005770972.3 furnished with a diploma or certificate of graduation. Schools offering a correspondence course not requiring actual attendance shall not be deemed a recognized school. Supervisor means the Revenue -Supervisor of the Business Licensing Section or his or her designated representative. Sec. 18-567. - Findings. The City Council finds, determines and declares that this article is enacted for the purpose of protecting the health, safety and welfare of the citizens within the community. The City Council recognizes that massage is a legitimate business activity, but if not properly regulated there exists a significant risk of unlawful activity and the spread of infectious disease. This article carefully balances the preservation of massage business against the need to reduce the risk of unlawful activity occurring at a massage business and the need to reduce the spread of infectious disease by imposing educational requirements on massage technicians and imposing minimum requirements for sanitary conditions. This article is authorized by Government Code section 51030 et seq. and other applicable law. Sec. 18-568. - Exemptions. The requirements of this chapter shall have no application and no effect upon and shall not be construed as applying to any persons designated as follows: state licensed physicians, surgeons, chiropractors, physical therapists, osteopaths or any 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 without qualifications as massage technicians, whether employed by physicians, surgeons, chiropractors or osteopaths or not, may not give massage or massage procedures. Sec. 18-568.5. - Massage Business Permit Required. Except as provided for in Section 18-636, it is unlawful for any person to own or operate, in or upon any premises within the city, a massage business in the absence of a valid business license pursuant to Article 1 of Chapter 18 of this code' and a permit issued pursuant to the provisions hereinafter set forth in this article. Sec. 18-569. - Permit fees. Fees for processing applications for permits under this article shall be set by resolution of the City Council and shall encompass the cost for the time spent processing the applications. Sec. 18-570. - Action on Permit. The supervisor, with assistance provided by the chief of police and police 4563 5.01000\5770972.3 department where necessary, may approve or deny the permits and renewal of permits required by this article, pursuant to Sections 18-597.5 and 18-632.5, and based upon the applicant's compliance or noncompliance with the requirements for the permit. If the permit is denied, the supervisor shall state in writing the reasons for the denial. An applicant may appeal a denial to the City Council by filing a written notice of appeal with the city clerk within ten business days following the supervisor's action. The City Council shall hold a hearing on the appeal in accordance with the procedures of section 18-571, except that the time limit for the appeal hearing shall commence from the date of the appeal. Sec. 18-570.5 - Changes of business. (a) Every massage business operator shall report immediately to the supervisor any and all changes of ownership or management of the massage business, including, but not limited to, changes of manager or other person principally in charge, stockholders holding more than 5% of the stock of the corporation, officers, directors and partners in any and all changes of name, style or designation under which the business is to be conducted and all changes of address or telephone numbers of the massage business. A change of location of any of the premises may be approved by the supervisor provided there is compliance with all applicable regulations of the city of Azusa. (b) The owner or operator of any massage business exempt from the permitting requirements of this article pursuant to Section 18-636 shall notify the supervisor of his or her intention to rename, change management or convey the business to another person. (c) No massage technician permit or massage business permit may be sold, transferred or assigned by a permittee, or by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be null and void; provided and excepting, however, that if the permittee is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of such permit, and in such case, the permit, upon notification to the supervisor, shall be placed in the name of the surviving partners. Sec. 18-570.10. - Transfer and duration of permits. (a) Except as permitted by Section 18-570.5, no permit issued hereunder shall be transferable to any other person or business; provided, however, an additional location or change of location of a massage technician permit will be allowed upon prior written notice to the supervisor and payment of the appropriate transfer fee. (b) All permits issued pursuant to this article shall be valid for 1 year, and must be renewed annually. If any information contained in the previous year's permit has changed, annual renewal shall be accomplished by completing the renewal form provided 5 45635.01000\5770972.3 by the business licensing section, and updating all information provided in the initial permit application and required by Sections 18-597 and 18-632 of this article. If all information contained in the previous year's permit is unchanged, annual renewal shall be accomplished by the applicant signing under penalty of perjury, a declaration provided by the business licensing section indicating that all circumstances are unchanged from the previous year The procedures contained in Sections 18-597.5 and 18-632.5 of this article for permit issuance and denial shall be utilized for permit renewal. (c) Applications for the next ensuing permit shall be filed with the supervisor before the expiration of the existing permit. Temporary permits will not be issued and renewal applications must be filed no later than 90 days prior to the expiration of the permit to prevent a lapse of the permit. In the event the 90 day period is extended pursuant to Section 18-597.5, the existing permit shall be deemed valid for the period of the extension. (d) The applicant shall accompany the application for renewal with the appropriate filing fee. (e) The lapsing or suspension of any permits issued hereunder, whether by operation of law or by order or decision, or the voluntary surrender of a permit by a permittee, shall not deprive the City of the ability to proceed with any investigation of or action or disciplinary proceeding against such permit or permit holder, or to render a decision suspending or revoking such a permit. Sec. 18-571. - Revocation of Permit. (a) Upon a written finding that the holder of any permit issued pursuant to this article has violated this article, committed any of the acts described in section 18-597.5 or has violated any other law or ordinance related to the operation of the business, the supervisor may revoke or refuse to renew a permittee's permit, or suspend for a period not to exceed six months or impose additional conditions on the permit as he deems appropriate given the violations proven. (b) The supervisor shall serve the findings and decision upon the permittee personally or by certified mail. The permittee may appeal the Supervisor's decision to the City Council by filing a written notice of appeal with the City Clerk stating the reasons for the appeal within ten business days of personal service or three business days following deposit of the notice into the custody of the U.S. Postal Service. Filing a notice of appeal shall suspend the supervisor's action until the City Council has acted on the appeal. (c) The City Council shall make its decision following a hearing held not less than 15 nor more than 40 days following filing of the notice of appeal. The City Council may elect to have evidence on the appeal taken by a hearing officer. In such case, the Council shall appoint a qualified hearing officer who shall take evidence on the appeal in accordance with any Council rules for the conduct of appeal hearings. The hearing officer shall cause the hearing to be recorded by a certified court reporter and, following the 45635.01000\5770972.3 close of the hearing, shall prepare findings of fact. The verbatim transcript of the hearing, any evidence submitted and the hearing officer's findings of fact shall be furnished to the members of the Councit for their review. The supervisor and the permittee may make arguments to the Council based upon the evidence taken before the hearing officer. The Council shall make its decision on the appeal based upon the transcript of the testimony presented to the hearing officer, the evidence submitted and accepted by the Council, the hearing officer's findings of fact and any arguments submitted by the supervisor or the permittee. The Council's decision shall be made by resolution. (d) The City Council may, by resolution, establish procedures for the conduct of the hearings. Sec. 18-572. - Violation and Penalty. (a) Violations of this chapter and article may be enforced pursuant to the provisions of Chapter 1, section 1.10 et seq. of this code. (b) Any massage business operated, conducted or maintained contrary to the provisions of this chapter shall be, and the same is declared to be, unlawful and a public nuisance, and the City may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof, in the manner provided by law, and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such massage business and restrain and enjoin any person from operating, conducting or maintaining a massage business contrary to the provisions of this chapter. Secs. 18-573-18-595. — Reserved. Sec. 18-596. - Permit required. No person shall engage in, conduct or carry on or permit to be engaged in, conducted or carried on, in or upon any premises within the city, the operation of a massage business without a permit duly issued by the supervisor pursuant to this article for each business location. The required permit shall be in addition to any other license or permit required by this Code. Sec. 18-597. — Massage Business Permit Application. (a) An application for a massage business permit (including a renewal of an existing permit) shall be made upon a form provided by the business licensing section and shall include or be accompanied by the appropriate filing fee established by resolution of the City Council. The application shall be completed and signed by the applicant of the proposed massage business, if a sole proprietorship; one general partner, if the applicant is a partnership; one officer or one director, if the applicant is a corporation; and one participant, if the applicant is a joint venture. The application for permit does not 45635.01000\5770972.3 authorize operation of a massage business unless and until such permit has been properly granted. The application shall contain or be accompanied by the following information: (1) The type of ownership of the business; for example, whether by individual, partnership, corporation or otherwise. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter, together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than 5% of the stock of that corporation. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners, including limited partners. If it is a limited partnership, it shall furnish a copy of its certificate of limited partnership filed with the Secretary of State. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporations shall apply. The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer. Such designated persons shall complete and sign all application forms required for an individual applicant under this chapter, but only one application fee shall be charged; (2) The precise name under which the massage business is to be conducted; (3) The complete address and all telephone numbers of the massage business; (4) The business hours of the massage business; (5) A statement as to whether the applicant intends to provide off -premises massages. (6) A complete current list of the names and residence addresses of all proposed massage technicians and employees in the massage business and the name and residence addresses of the manager or managing employee proposed to be principally in charge of the operation of the massage business; (7) A description of any other business operated on the same premises or within the city of Azusa or the State of California which is owned or operated by the applicant; (8) The following personal information concerning the applicant: (A) Full complete name and all aliases used by the applicant; (B) Current address and all previous residential addresses for eight years immediately preceding the present address of the applicant; (C) Acceptable proof that the applicant is at least 18 years of age; (D) Height, weight, color of hair, eyes and gender; 45635.01000\5770972.3 (E) Two front faced portrait photographs at least two inches by two inches in size taken not more than six months preceding the date of the application; (F) The applicant's complete business, occupation and employment history for eight years preceding the date of application, including, but not limited to, the massage or similar business history and experience of the applicant; (G) The complete massage permit history of the applicant, whether such person has ever had any permit or license issued by any agency, board, city, county, territory or state; the date of issuance of such a permit or license, whether the permit or license was denied, revoked or suspended; and the reason therefore; (H) All criminal convictions, including pleas of nolo contendre, within the last ten years, including those dismissed or expunged pursuant to Penal Code section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefore; (I) A complete set of fingerprints taken by the City; (9) The name and address of the owner and lessor of the real property upon or in which the business is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the property that a massage business will be located on his or her property; (10) Authorization for the City, its agents and employees to seek verification of the information contained in the application; (11) Such other identification and information as the supervisor may require in order to discover the truth of the matters herein specified and as required to be set forth in the application; (12) A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct; (13) Statements in writing and dated by the applicant and the applicant's designated manager(s) certifying under penalty of perjury that they: (A) Have received a copy of this chapter 18, article IX; (B) Understand its contents; and (C) Understand the duties of an operator or manager, as the case may be, as provided in this chapter; (14) If, during the tern of a permit, the operator has any change in information 45635.0100015770972.3 submitted on the original or renewal application, the operator shall notify the business licensing section of such change, within ten business days thereafter, in writing. Sec. 18-597.5 - Massage Business Permit Investigations. (a) Upon receipt of a written application for a permit, the supervisor shall conduct an investigation to ascertain whether such permit should be issued as requested. The supervisor shall approve or deny the application within 90 days of submittal of the application for a massage business permit as set forth in § 18-597. The 90 day period may be extended for up to 30 additional days, if necessary, to complete the investigation. The supervisor shall issue such permit as requested, unless he or she makes any of the following findings: (1) The applicant, if an individual, or any of the officers or directors of the corporation, if the applicant is a corporation;.or a partner, if the applicant is a partnership, or any person directly engaged or employed in the massage business, has within eight years preceding the date of the application: (A) Been convicted of a violation of California Penal Code sections 266h, 2661, 314, 315, 316, 318, 647(a), 647(b) or 647(d) or any other provision of law pursuant to which a person is required to register under the provisions of Penal Code section 290 or when the prosecution accepted a plea of guilty or nolo contendre to a charge of a violation of California Penal Code section 415 or any lesser included or lesser related offense in satisfaction of, or as a substitute of, any of the previously listed crimes; (B) Been convicted of a violation of Health and Safety Code section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in Health and Safety Code section 11054, 11055, 11056, 11057 or 11058; (C) Been convicted of any offense in any other state which is the equivalent of any of the above-mentioned offenses; (D) Been engaged in conduct in another jurisdiction which, if it had occurred within the city, would constitute grounds for denial, suspension or revocation under this chapter; (E) Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to California Penal Code sections 11225 through 11235 or any similar provisions of law in a jurisdiction outside the State of California; (F) Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to California Health and Safety Codes sections 11570 through 11587 or any similar provisions of law in a jurisdiction outside the State of California; 10 45635.01000\5770972.3 (G) Engaged in conduct which would constitute an offense as described in subsection (a); (H) Committed an act in another jurisdiction which, if committed in this state, would have been a violation of law and which, if done by an operator under this chapter, would be grounds for denial, suspension or revocation of the permit; (I) Been convicted of an act involving dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are related to the qualifications, functions or duties of the applicant; (J) The applicant has had a massage business permit or massage technician permit or other similar license or permit denied, suspended or revoked for cause by a licensing authority, including the California Massage Therapy Council, or by any city, county or state; (2) The applicant has made a false, misleading or fraudulent statement or omission of fact to the city in the permit application process; (3) The application does not contain all of the information required by section 18-597; (4) The massage business, as proposed by the applicant, does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards; (5) The applicant has not satisfied the requirements of this chapter in the time specified; (6) If the application is denied for failure to comply with subsections (2) or (3) above, the applicant may not reapply for a period of six months from the date the application was denied; or (7) The applicant does not possess a valid business license issued pursuant to this Code. (b)' All operators and managers shall comply with the following conditions. (1) No person granted a permit pursuant to this chapter shall use any name or conduct business under any designation not specified in his or her permit. (2) Each operator shall provide the supervisor with evidence of the insurance required by section 18-598(a)(22) within 45 days of the date of issuance of the permit. (3) The operator shall comply with all provisions of this chapter and any applicable provisions of the Azusa Municipal Code. (4) The operator and/or manager shall be responsible for the conduct of all 11 45635.01000\5770972.3 employees while they are acting on behalf of the massage business. Any act or omission of any employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator for proposes of determining whether the operator's permit shall be revoked, suspended, denied or renewed. (5) The operator shall comply with all provisions of this article and any application provisions of the Azusa Municipal Code. Sec. 18-598. - Operating Requirements. (a) No permit to operate a massage business shall be issued unless an inspection by the City or health department reveals that the business complies with each of the following minimum requirements, and every massage business (including those for which the operator is exempt from having to maintain a massage business permit) shall comply with the following requirements, and no person shall engage in, conduct or carry on, or permit to be engaged in, conducted or carried on, any massage business unless each of the following requirements are met, and no person shall perform or administer a massage in a business unless each of the following requirements are met: (1) Except as provided in section 18-635, massage businesses shall be located in a zoning district which permits such use. (2) Each operator and/or on -duty manager shall post and maintain, in compliance with existing state and city laws, a readable sign identifying the premises as a massage business. The sign and the front of the business shall not be illuminated by strobe or flashing lights. (3) Each operator and/or on -duty manager shall display the operator's permit in a conspicuous public place in the lobby of the massage business. In addition, each operator and/or on -duty manager shall ensure the massage technician permit or the California Massage Therapy Council technician certification for each massage technician employed at the business (whether on -duty or not) is conspicuously displayed in a public place in the lobby. Such permit or certification shall be provided to city regulatory officials upon demand. The operator and/or on -duty manager must also post, on a daily basis in a conspicuous public place in the lobby, the name of the operator and/or on -duty manager, as well as all on -duty massage technicians. Finally, the hours of operation must be posted in the front window and clearly visible from the outside. (4) Each operator and/or on -duty manager shall post and maintain a list of services available and the cost of such services in one-half inch or larger letters in a conspicuous public place within the premises. The services shall be described in the English language, and no operator or responsible managing employee shall permit, and no massage technician shall offer or perform, any service other than those posted. Nothing in this subsection shall preclude the operator from posting additional signs in other languages as long as at least one sign in English is posted pursuant to this subsection. 12 45635.01000\5770972.3 (5) Each operator shall provide in each room where massage is given sufficient lighting and ventilation that complies with the Uniform Building Code. The lighting in each massage room shall be activated at all times while the patron is in such room or enclosure. (6) A minimum of one toilet and one separate wash basin shall be provided for patrons in each massage business, which basin shall provide soap or detergent and hot running water at all times and shall be located within close proximity to the area devoted to the performing of massage services. A permanently installed soap dispenser, filled with soap, and a single service towel dispenser shall be provided at the restroom hand wash sink. No bar soap may be used. A trash receptacle shall be provided in each toilet room. Showers may be provided at the operator's option. (7) If male and female patrons are to be treated simultaneously at the same massage business, separate massage rooms shall be provided for male and female patrons. (8) All facilities for the massage business must be in good repair and shall be thoroughly cleaned and sanitized each day the business is in operation. All walls, floors and ceilings of each restroom and shower area shall be made smooth and easily cleanable. No carpeting shall be installed in any of these areas. (9) A massage table shall be provided in each massage room and the massage shall be performed on this massage table. The tables should have a minimum height of 18 inches. Two inch thick foam pads with maximum width of four feet may be used on a massage table and must be covered with durable, washable plastic or other waterproof material. Beds, floor mattresses and waterbeds are not permitted on the premises. (10) Each operator and/or on duiy manager shall provide and maintain on the premises adequate equipment for disinfecting and sterilizing instruments used in massage. (11) Each massage technician shall provide and maintain at the location where the massage is performed adequate equipment for disinfecting and sterilizing instruments used in massage. No massage technician shall administer any massage with instruments that have not been disinfected and sterilized after the previous use. (12) A separate locker, capable of being locked, shall be provided at no extra charge for each patron served. (13) The operator and/or on duty manager consents to the inspection of the massage business by the city's building and safety department, fire department and police department and the County Health Department for the purpose of determining that the provisions of this chapter or other applicable laws or regulations are met. (A) The city's building and safety department, fire department, police department and the County Health Department may, from time to time, make an inspection of each massage business for the purpose of determining that the provisions of 13 45635.01000\5770972.3 this chapter, state law or other applicable laws or regulations are met. Routine inspections shall not occur more than twice a year, unless violations are found or complaints are received. 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 that the provisions of this chapter are met upon occurrence of any of the conditions described in this subsection (a)(27) which would require the posting of the Notice To All Patrons. During an inspection, the police department may verify the identify of all on -duty employees. (B) Inspections of the massage business shall be conducted during business hours. (C) An operator or his or her agent, servant or employee commits an offense if he or she refuses to permit a lawful inspection of the premises by a representative of the police department at any time it is occupied or open for business. (14) Common use of towels or linen shall not be permitted. Towels and linen shall be laundered or changed promptly after each use. Separate cabinets or containers shall be provided for the storage of clean and soiled linen and shall be plainly marked "clean linen" and "soiled linen." (15) No person or persons shall be allowed to live inside the massage business at any time. All living quarters shall be separate from the massage business. No food of any kind shall be prepared for sale or sold in the business unless an appropriate public health permit is granted by the County of Los Angeles. (See Los Angeles County Ord. 96-0069 § 12.) (16) No person shall enter, be in or remain in any part of a massage business licensed under this chapter while in possession of, consuming, using or under the influence of any alcoholic beverage or controlled substance. The operator and manager shall be responsible to ensure that no such person shall enter or remain upon the massage business. Service of alcoholic beverages shall not be permitted. (17) The operator and/or on duty manager shall maintain a register of all employees showing the name, nicknames and aliases used by the employee, home address, age, birth date, gender, height, weight, color of hair and eyes, phone numbers, social security number, date of employment and termination, if any, and duties of each employee. The above information on each employee shall be maintained in the register on the premises for a period of two years following termination; provided, however, that the city may establish a policy that would allow for the safeguarding of social security numbers on the premises, while making the full social security numbers available for inspection within 24 hours of demand as provided for herein. The operator and/or manager on duty shall make the register of employees available immediately for inspection by police upon demand of a representative of the police department at all reasonable times. The operator of a massage business exempt from the permitting requirements of this chapter pursuant to section 18-636 shall maintain on the premises a copy of the sole proprietor's current, valid California Massage Therapy Council 14 45635.01000\5770972.3 technician certification. The operator of a massage business that employs or uses only technicians possessing and maintaining a current, valid massage technician certification issued by the California Massage Therapy Council shall maintain the required register of all employees and a copy of each technician's current, valid California Massage Therapy, Council, technician certification. (18) Each massage business shall provide to all patrons clean, sanitary and opaque coverings capable of covering the patrons' specified anatomical areas, including the genital area, anus and female breast(s). No common use of such coverings shall be permitted, and re -use is prohibited unless adequately cleaned. (19) Every person operating a massage business 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 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 chapter and for no other purpose. The supervisor shall periodically inspect the records to ensure compliance with this section. The records shall be kept on the premises of the massage business for a period of two years. The information furnished or secured as a result of any such records should be used only to ensure and enforce compliance with this chapter 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. (20) The operator must advise the City, in writing of any changes in business hours. No person shall operate a massage business or administer a massage in any massage business or at an off -premises location booked by that massage business pursuant to section 18-599 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 business 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 business and in the front window clearly visible from the outside. (21) No massage business shall operate as a school of massage or operate in the same location or use the same facilities as a school of massage, except as otherwise may be permitted by law. It shall be unlawful for any person to perform any massage upon a member of the general public while on the premises of a school of massage. Instructors and students of such schools may practice massage only upon a bona fide employee or student of the school. (22) No massage business granted a permit under this chapter shall place, publish or distribute, or cause to be placed, published or distributed, any advertising 15 45635.01000\5770972.3 matter that depicts any portion of the human body that would reasonably suggest to prospective patrons that any service is available other than those services described in this chapter. Nor shall any massage business employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available other than those services authorized by this chapter. (23) No person shall engage in, conduct or carry on the business of a massage business unless there is on file with the city clerk, in full force and effect at all times, documents issued by an insurance company authorized to do business in the State of California evidencing that the operator is insured under a liability insurance policy providing minimum coverage of $500,000 for injury or death to one person arising out of the operation of any massage business and the administration of a massage. (24) All massage businesses must comply with all state and federal laws and regulations for handicapped customers. (25) Proof of compliance with all applicable provisions of the Azusa Municipal Code shall be provided. (26) All front, reception, hallway or front exterior doors (except back or exterior doors used solely for employee entrance to and exit from the massage business) shall be unlocked during business hours, except as may be permitted by applicable law (such as the Uniform Fire Code) which allow for safety doors which may be opened from the inside when locked. Whenever the business is open, staff shall be available to assure security for clients and massage staff who are behind closed/unlocked doors. No massage may be given within any cubicle, room, booth or any area within a massage business which is fitted with a lock of any kind (such as a locking door knob, padlock, dead bolt, sliding bar or similar device), unless the only door is an exterior door. (27) No person(s) other than valid permit holders under this chapter and customers will be allowed anywhere in the massage business other than the lobby/reception area during hours of operation. Entry doors to any room shall not be obstructed by any means. (28) The supervisor may require that the following notice be posted in the event that any employee of the massage business or any person who has been aided and abetted by an employee of the massage business has been found, after full hearing by administrative proceeding or state court, to have violated any of the offenses listed in section 18-598: NOTICE TO ALL PATRONS THIS MASSAGE BUSINESS AND THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION BY THE AZUSA POLICE DEPARTMENT WITHOUT PRIOR NOTICE. (A) The notice set forth above shall be prepared and issued by the supervisor. 16 45635.01000\5770972.3 (B) The notices shall be conspicuously posted in a location within the massage business that are easily visible to any person entering the premises and in each massage room. The notice shall be so posted for 12 months following the violation of any of the offenses set forth above. (C) The requirement for posting the notice described in this section is cumulative and in addition to all other remedies, violations and penalties set forth in this chapter or in the ordinances, laws, rules or regulations of the City of Azusa, the County of Los Angeles, and the State of California. (29) Except to the extent required, in writing, by a state licensed medical practitioner, no massage technician, massage technician aide or other person shall massage the genitals or anal area of any patron or the breast(s) of any female patron. No massage technician, massage technician aide or other person, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, gluteal crease, anus or, in the case of a female, her breast(s), are fully covered. (30) No massage technician shall massage any patron unless the person's genitals, gluteal crease, anus and, in the case of a female, her breast(s), are fully covered at all times while the technician or other employee is present in the same room as the patron. (31) Unless performing a massage pursuant to section 18-599, a massage business permit with an off -premises endorsement, massage technicians shall not perform any massage at any location other than the massage business specified on the permit booked by that massage business. (32) Massage technicians, massage technician aides and other persons shall be fully clothed at all times. Clothing shall be of a fully opaque, non -transparent material and provide complete covering of their genitals, pubic area, buttocks, anal area, and chest area. (33) A manager shall be on the premises at all times the massage business is open. The operator of each massage business shall file a statement with the supervisor designating the person or persons with power to act as a manager. The operator shall also file with the business licensing section a statement, as required by section 18-597(a)(12) above, signed and dated by each such designated manager certifying under penalty of perjury that they: (A) Have received a copy of this chapter; (B) Understand its contents; and (C) Understand the duties of a manager as provided in this chapter. 17 4563 5.01000\5 770972.3 The operator and/or on duty manager shall post, on a daily basis, the name of each on duty manager in a conspicuous public place in the lobby of the massage business. The operator, or the manager in the operator's absence, shall be responsible for ensuring compliance with this chapter. (34) At least one massage technician holding a current valid permit for the specific business shall be on the premises and on duty at all times when the business is open. (35) The operator and/or on duty manager shall be responsible for the conduct of all employees while the employees are on the premises; (36) No operator or manager shall employ. any person as a massage technician who does not have a valid massage technician permit issued pursuant to this chapter, or a California Massage Therapy Council technician certification. Every operator or manager shall report to the supervisor any change of employees, whether by new or renewed employment, discharge or termination, on the form and in the manner required by the supervisor. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within five days of the date of hire or termination. (37) No operator or massage technician may discriminate or exclude patrons on the basis of their race, sex, religion, age, handicap or any other classification protected under federal or state laws, rules or regulations. (b) In the event the terms and conditions of any current, valid massage technician certification issued by the California Massage Therapy Council, or any applicable regulation adopted by a state agency, conflict with or supersede the requirements of this section, any massage business•exempt from the permitting requirements of this chapter pursuant to section 18-636 shall not be subject to the requirements of this section to the extent of any such conflict or inconsistency. See. 18-599. - Off -premises massage business. (a) No person shall engage in, conduct, carry on or advertise or permit to be engaged in, conducted or carried on any off -premises massage business in the city without a massage permit duly issued by the City Council pursuant to this article with an off - premises endorsement. The required permit shall be in addition to any other license or permit required by this Code. (b) The permit application shall be made in accordance with section 18-597. Permits shall be issued in the same manner as provided in section 18-598. (c) In addition to section 18-598, each off -premises massage business must comply with the following: (1) The owner, operator, responsible managing officer, manager or permittee shall display the permit issued therefor and a true and correct copy of the permit of each W 45635.01000\5770972.3 massage technician employed by the business to every customer who so requests. (2) No person operating an off -premises massage business shall employ or allow a person to act as an off -premises massage technician, unless such person has a valid massage technician permit issued by the business licensing section for off -premises massage. (3) No person operating an off -premises massage business shall assist, allow or permit any massage technician to perform any massage in a hotel, motel or commercial establishment that does not have a massage business permit, unless the commercial establishment is the business premises of the customer. Sec. 18-600-18-630. —Reserved. Sec. 18-631. - Massage Technician Permit Required. Except as provided in section 18-636 no person shall perform or administer a massage or advertise to provide massage services in the city of Azusa, unless such person has in effect a valid massage technician permit issued pursuant to sections 18-632 and 18- 632.5 of this chapter. A massage technician shall comply with the requirements of sections- 18-632, 18-632.5 and 18-598. Permits are in effect when approved by the supervisor and shall be valid for a period of one (1) year. Sec. 18-632. - Massage Technician Permit Application. (a) Any person desiring a massage technician permit (including a renewal of an existing permit) shall file a written application on the required form with the supervisor. The application shall be accompanied by the appropriate filing fee established by resolution of the City Council. The application shall contain the following information: (1) A statement of the exact location at which the applicant will be working as a massage technician, including the full street address and all telephone numbers associated with the location and the name and address of the following personal information concerning the applicant: (A) Full complete name and all aliases used by the applicant, along with complete residence address and telephone; (B) All previous residential addresses for eight years immediately preceding the current address of the applicant; age; (C) Acceptable written proof that the applicant is at least 18 years of (D) Height, weight, color of hair and eyes and gender; (E) Two front faced portrait photographs at least two inches by two 19 45635.01000\5770972.3 inches in size not more than six months preceding the date of the application; (F) The business, occupation and employment history of the applicant for the eight years immediately preceding the date of the application; (G) The complete permit history of the applicant and whether such person has ever had any license or permit, issued by any agency, board, including the California Massage Therapy Council, City or other jurisdiction, denied, revoked or suspended.and the reasons therefor; (2) All criminal convictions, including pleas of nolo contendre, within the last ten years, including those dismissed or expunged pursuant to Penal Code section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefor; (3) A complete set of fingerprints taken by the City; (4) A certificate from a medical doctor licensed to practice in the state, issued not more than 30 days prior to the date of the application, that certifies the applicant has been examined and has no communicable disease; (5) Such other information and identification as the supervisor may require in order to discover the truth of the matters herein specified and as required to be set forth in the application; (6) Authorization for the City, its agents and employees to seek verification of the information contained in the application; (7) A statement in writing and dated by the applicant certifying under penalty of perjury that all information contained in the application is true and correct; (8) A statement in writing and dated by the applicant certifying under penalty of perjury that he or she: (A) Has received a copy of this chapter; (B) Understands its contents; and (C) Understands the duties of a massage technician as provided in this chapter. (9) If, during the term of a permit, a permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the business licensing section of such change within ten business days thereafter, in writing. (b) Each applicant must furnish an original or certified copy of a diploma or certificate and certified transcript of graduation for completion of 500 hours of instruction 20 45635.0100015770972.3 from an approved or recognized school of massage, wherein the method, practice, profession, theory, ethics, anatomical and physiological knowledge and practice of massage is taught by state certified instructors. The applicant must also supply a course description, an outline of material covered and a letter to the city from the school administrator verifying completion. The supervisor shall confirm an applicant has actually attended classes and matriculated in a "recognized school of massage." (1) The supervisor may consider an applicant's study of massage completed outside the State of California of proof of completion from a formalized course of study in massage practice, anatomy and/or physiology is provided with the application. Proof of completion shall include dates of study and the name, address and phone number of the school attended. (2) Any outside course of study submitted for approval shall meet the State of California's Office of Post -Secondary Education's minimum requirements and be for completion of 500 hours of on -premises training. (c) Prior to the renewal of a permit, the applicant shall provide proof of completion of ten hours per year of continuing education courses in massage from a recognized school of massage or a qualified massage association. (d) Notwithstanding anything in this chapter to the contrary, while the supervisor shall have the discretion to determine that a school of massage recognized by the California Massage Therapy Council is not a recognized school of massage for purposes of this chapter, any school of massage not approved by the California Massage Therapy Council shall not be recognized by the supervisor for purposes of this chapter. Sec. 18-632.5. - Massage Technician Permit Issuance and Denial. (a) Upon receipt of a written application for a permit, the supervisor shall conduct an investigation in such manner as he or she deems appropriate in order to ascertain whether such permit should be issued as requested. The supervisor shall approve or deny the application within 90 days of the applicant's passing of the examinations set forth in § 18-632(d). The 90 day period may be continued for an additional 30 days if necessitated by the occurrence of events beyond the control of supervisor. The supervisor shall issue such permit as requested, unless he or she makes any of the following findings: (1) The applicant has within eight years preceding the date of the application been convicted of any of the following: (A) A violation of Penal Code sections 266(h), 266(1), 314, 315, 316, 318, Penal Code section 647 (a) or (b). or that the applicant is required to register under the provisions of Penal Code section 290 or when the prosecution accepted a plea of guilty or nolo contendre to a charge of a violation of California Penal Code section 415 or any lesser included or lesser related offense in satisfaction of, or as a substitute for, any of the previously listed crimes; 21 45635.0100015770972.3 (B) A violation of Health and Safety Code section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in Health and Safety Code sections 11054, 11055, 11056, 11057 or 11058; or (C) Any offense in any other state which is the equivalent of any of the above-mentioned offenses; (2) The applicant has engaged in conduct which would constitute an offense as described in subsection (1)(A) within eight years immediately prior to the filing of any application; (3) The applicant has committed an act, which, if committed in this state would have been a violation of law and which, if done by an operator under this chapter, would be grounds for denial, suspension or revocation of the permit; (4) The applicant has been convicted of an act involving dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are substantially related to the qualifications, functions or duties of a massage technician; (5) The applicant has had a massage business permit or massage technician permit or other similar license or permit denied, suspended or revoked for cause by a licensing authority or by any city, county or state within eight years prior to the date of the application; (6) The applicant has knowingly made a false, misleading or fraudulent statement or omission of fact to the city in the permit application process; (7) The application does not contain the information required by section 18- 632; (8) The applicant has not satisfied the requirements of this chapter in the time specified; (9) If the application is denied for failure to comply with subsections (6) or (7) above, the applicant may not reapply for a period of six months from the date the application was denied. Sec. 18-633. - Off -premises technician's permit, operating requirements. (a) No person shall engage in the business of an off -premises massage technician unless such person holds a valid massage technician's permit issued by the business licensing section, endorsed for off -premises work. A massage technician's permit shall be endorsed by the business licensing section for off -premises work upon application by the permittee, provided the permit is valid and there are no pending proceedings for its revocation or suspension. 22 45635.0100015770972.3 (b) No person holding a massage technician's permit endorsed for off -premises work shall perform any massage service in a hotel, motel or in any commercial establishment other than a premises holding a valid massage permit or the business premises of the customer. Each off -premises massage technician shall display the permit to any customer who requests it. Upon any change of employers, the permittee shall inform the supervisor within ten working days. Sec. 18-634. - Annual medical certificate. Each massage technician shall annually, at the time of renewal of his or her permit, supply the supervisor with a new medical certificate as required by subsection 18- 632(a)(2). Sec. 18-634.5 - Existing Permittees. (a) Commencing on the effective date of this ordinance, all permits are to be issued in accordance with the provisions of this article. (6) Existing massage business permits and massage technician's permits shall continue in effect until expiration. All existing permit holders shall have an additional 24 months from the effective date of this chapter to meet and comply with the 500 hour training requirement. Sec. 18-635. - Special Zoning Exemption. (a) Massage businesses that are sole proprietorships, where the sole proprietor possesses and maintains a current, valid massage technician certification issued by the California Massage Therapy Council, and massage businesses that employ only massage technicians possessing a current, valid massage technician certification issued by the California Massage Therapy Council may operate in the same zones, with the same zoning restrictions and requirements, including obtaining a conditional use permit if applicable, as provided for in Chapter 88 of this Code for the following personal services or professional businesses: (1) Barber and beauty shops. (2) Massage businesses. (3) Medical Services — Doctor Office. (4) Tattoo and body piercing services. Sec. 18-636. - Effect of California Massage Therapy Council Certification. (a) Notwithstanding any provision of this chapter to the contrary, a massage technician who possesses and maintains a current, valid massage technician certification 23 45635.01000\5770972.3 issued by the California Massage Therapy Council shall not be required to obtain a massage technician permit or supply an annual medical certificate pursuant to this chapter. Any massage technician claiming an exemption under this subsection shall provide the business licensing section with the address of the massage business where he or she is regularly employed or retained to provide massage therapy, and shall also file with the business licensing section a copy of his or her current, valid massage technician certification issued by the California Massage Therapy Council. (b) Notwithstanding any provision of this article to the contrary, any person who owns or operates a massage business shall not be required to obtain a massage business permit pursuant to this article provided any of the following is true: (1) The massage business is a sole proprietorship and the sole proprietor possesses and maintains a current, valid massage technician certification issued by the California Massage Therapy Council. As used herein for this exception, the term "sole proprietorship" shall be as defined in Cal. Business and Professions Code section 4612(b), which currently states that a "sole proprietorship" is "a business where the owner is the only person employed by that business to provide massage services. (2) The massage business only employs or uses massage technicians who possess and maintain a current, valid massage technician certification issued by the California Massage Therapy Council. (c) This section does not exempt or excuse any massage technician or massage business from complying with all other applicable requirements and provisions of this chapter or code, including obtaining a valid business license pursuant to Article 1, Chapter 18 of this Code. Secs. 18-637-18-655. — Reserved. Sec. 18-656. - Permit required; operating requirements. (a) No person shall engage in, manage or conduct or operate a bath business without a written permit from the supervisor. (b) The health and sanitation provisions set forth in section 18-598 shall apply to the premises upon which any bath business is conducted. No person shall be permitted to work in a bath business in any capacity that would require such person to touch the body of another, unless the premises has a permit to operate a massage business and the employee is in possession of a bath and massage technician's permit. No person under 18 years of age shall be permitted to work on the premises. Secs. 18-657-18-690. - Reserved. SECTION 2. If any section, subsection, paragraph, sentence, clause, phrase or portion of this Chapter is for any reason held to be invalid or unconstitutional by the decision of 24 4563 5.0 100015770972.3 any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter. SECTION 3. The City Council finds that the proposed Ordinance is not subject to the California Environmental Quality Act ("CEQA") pursuant to Section 15060(c)(2) of the CEQA Guidelines, California Code of Regulations, Title 14, because the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment; and Section 15060(c)(3) of the CEQA Guidelines because the activity is not a project as defined in Section 15378 of the CEQA Guidelines, because it has no potential for resulting in direct or indirect physical change to the environment. SECTION 4. The City Clerk shall certify to the passage and adoption of this ordinance, causing it to be posted as required by law, and it shall be effective (30) days after its adoption. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Azusa on this day of October, 2011. ATTEST: ERA MENDOZA CITY CLERK APPROVED AS TO FORM: SONIA CARVALHO CITY ATTORNEY 25 45635.01000\5770972.3 JOSEPH R. ROCHA MAYOR STATE OF CALIFORNIA) COUNTY OF LOS ANGELES ) SS CITY OF AZUSA) I, Vera Mendoza, City Clerk for the City of Azusa hereby certify that the foregoing Ordinance No 11-017, was duly introduced and placed upon its first reading at a regular meeting of the City Council of the City of Azusa held on the 3`d day of October, 2011, and that thereafter, said Ordinance was duly adopted and passed at a regular meeting of October 17, 2011, by the following vote, to wit: AYES: COUNCILMEMBERS:GONZALES,CARRILLO, MACIAS, HANKS, ROCHA NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE VERA MENDOZA CITY CLERK 92 45635.01000\5770972.3