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HomeMy WebLinkAbout71.28 ORDINANCE NO. 71.28 AN ORDINANCE OF THE CITY OF SARATOGA ADDING ARTICLE 4-55 TO CHAPTER 4 OF THE CITY CODE RELATING TO MASSAGE ESTABLISIHMENTS AND MASSAGISTS The City Council of the City of Saratoga hereby ordains as follows: SECTION 1: A new Article 4-55, entitled "Massage Establishments and Massagists," is added to Chapter 4 of the City Code, to read as follows: "ARTICLE 4-55 MASSAGE ESTABLISHMENTS AND MASSAGISTS 4-55.010 Definitions 4-55.020 Permit required for massage establishments 4-55.030 Certificate of registration required for massa~ists 4-55.040 Exemptions from Article 4-55.050 Application for permit 4-55.060 Investigation of permit application by Community Services Director; referral to City Manager 4-55.070 Public hearing by City Manager 4-55.080 Action by City Manager on permit application; ~rounds for denial; conditions of approval 4-55.090 Issuance of permit; duration; renewal 4-55.100 Application for certificate of registration 4-55.110 Investigation of certificate application by Community Services Director; referral to City Manager 4-55.120 Action by City Manager on certificate application; Founds for denial; conditions of approval 4-55.130 Issuance of certificate; duration; renewal 4-55.140 Permits and certificates non-transferable 4-55.150 Summary suspension of permit or certificate 4-55.160 Revocation or modification of permit or certificate 4-55.170 Appeals to City Council 4-55.180 Posting of sign, permit and certificates 4-55.190 Notice of employees' status 4-55.200 Massage establishment sanitary conditions 4-55.210 Outcall prohibited 4-55.220 Application to existing businesses 4-55.230 Violations of Article; penalties -1- S4-55.010 Definitions As used in this Article, the following terms shall have the meanings respectively ascribed to them by this Section, unless the context or the provision clearly requires otherwise: (a) Massage means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus, or other appliances or devices, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations. (b) Massage establishment means an establishment having a fixed place of business and in which the practice of massage is carried on for compensation. (c) Ma.ssagist means any person who practices massage for compensation. (d) Recognized school of massage means any school or institution of learning which teaches the theory, method, profession or work of a mnssagist and requires a residence eourse of not less than seventy hours of study prior to the issuance of a diploma or certificate of graduation. Any school or institution of learning offering or allowing correspondence course credit not requiring actual attendance at class shall not be deemed to be a recognized school of massage. S4-55.020 Permit required for massage establishments (a) No person shall establish or operate a massage establishment in the City without first obtaining and maintaining in effect a permit pursuant to this Article. (b) Any person desiring to operate a massage establishment for which a permit is required under the provisions of this Article shall also apply for and obtain a business license pursuant to Article 4-05 of this Chapter and pay the license fee specified in Section 4-05.100. No such business license shah be issued unless and until the applicant has first obtained a valid permit under this Article. (c) No person shall accept or continue employment as a massagist at any massage establishment in the City unless the owner or operator of such establishment holds a current unrevoked permit issued pursuant to this Article. S4-55.030 Certificate of registration required for massagists (a) No person shall practice as a massagist in the City without first obtaining and maintaining in effect a certificate of registration pursuant to this Article; provided, however, a certificate of registration is not required for an individual who is the named permittee under a current unrevoked massage establishment permit. (b) No person shall employ as a massagist in a massage establishment any person who does not possess a current unrevoked certificate of registration. $4-55.040 Exemptions from Article No permit or certificate of registration shall be required of any cosmetologist, barber or person licensed by the State to practice any healing art under the provisions of Division 2 (commencing with Section 500) of the State Business and Professions Code, when performing a massage within the scope of his license. S4-55.050 Application for permit (a) Application for a massage establishment permit shall be made to the Community Services Director on such form as he may prescribe. The application shall contain the following information: (1) The full name, present address, telephone number, birthdate and driver's license number of applicant, and if the applicant is a partnership or other association, the names, addresses, telephone numbers, birthdates and driver's license numbers of the partners or members thereof, and if the applicant is a corporation, the names, addresses, telephone numbers, birthdates and driver's license numbers of the officers and directors thereof. (2) The two previous addresses immediately prior to the present address of the applicant, and the dates of residence at each. (3) Written proof that the applicant is over the age of eighteen years. (4) The name under which, and address within the City where, the applicant proposes to operate a massage establishment and the assessor's parcel number for such property, together with the street address, city, county and state where the applicant practiced or conducted any similar business within twenty-four months immediately preceding the date of the application, and the name under which such similar business was conducted. (5) A statement that the applicant either owns the premises where the massage establishment shall be located or leases such premises, in which event the name, address and telephone number of the owner of the premises shall be specified and the date and term of the lease shall be set forth. (6) The names and addresses of all owners of real property located within five hundred feet of the premises where the massage establishment is proposed to be located. (7) A statement identifying and fully describing any arrests or convictions of the applicant, including any of the persons listed in SubpsragTaph ()~) above, for either a felony or a misdemeanor. (8) Such additional information as may be requested by the Community Services Director. (b) The application shah be accompanied by the payment of a non- refundable processing fee, in such amount as established from time to time by resolution of the City Council. 64-55.060 Investigation of permit app~eation by Community Services Director, referral to City Manager Upon receipt of the application and fee as required in Section 4-55.050, the Community Services Director shall make an investigation of the application and submit a report thereon to the City Manager. In connection with such investigation, the Community Services Director shah have the application reviewed by such departments and agencies as he deems appropriate, including, but not limited to, the following: (a) The County Sheriff, for determination as to the moral character and background of the applicant. (b) The County Health Department, for determination as to the sanitary conditions of the premises, including specifically the requirements set forth in Section 4-55.200 of this Article. (c) The Planning Director, for determination as to whether the premises and the proposed use thereof as a massage establishment comply with building codes, zoning requirements and other rules, regulations and ordinances of the City. 64-55.070 PubHe hearing by City Manager (a) The City Manager shall conduct at least one public hearing on the application for a massage establishment permit. Notice of the hearing shall be given not less than ten days prior to the date of the hearing by mailing, postage prepaid, a notice of the time, place and purpose of the hearing to the applicant, to the owner of the premises if not owned by the applicant, and to all persons whose names appear on the latest available tax roll of the County as owning property within five hundred feet of the boundaries of the site on which the massage establishment will be conducted. A notice of the hearing shah also be conspicuously posted upon the premises and published at least once in a newspaper having general circulation in the City. (b) Each applicant or any other interested person shall have the opportunity to review all records, papers, files and any other evidence relating to the application for a massage establishment permit, except background information on individuals, at any time prior to the public hearing on such application. (c) At the public hearing, the City Manager shall review the application and accompanying documents, the report from the Community Services Director and other departments or agencies, and shall receive evidence from the applicant and any other interested persons concerning the proposed permit and any conditions pertaining thereto. -4- S4-55.080 AeUon by City Manager on permit application; grounds for denial; conditions of approval (a) The City Manager may grant the application for a permit as applied for or in modified or conditional form if, on the basis of the application and the evidence submitted, the City Manager makes all of the following findings: (1) The property on which the massage establishment will be conducted and the operation thereof complies with an building, zoning, fire, health and safety codes and with the requirements of this Article. (2) The proposed location of the massage establishment is in aecord with the objectives of the zoning ordinanee and the purposes of the district in which the site is located. (3) Hone of the grounds for denial of the permit, as listed in Paragraph (b) of this Section, exist. (4) The massage establishment and the conditions under which it will be operated will not be detrimental to the public health, safety or welfare, or injurious to properties in the vicinity or disturbing to the occupants thereof. (b) The City Manager may deny the application on any one or more of the following grounds: (1) Proof that the applleant has been convicted of a violation of Section 266i, 315, 316, 318 or subdivision (b) of Section 647 of the State Penal Code. (2) Proof that the applicant has been convicted in any other State of an offense which, if committed or attempted in this State, would have been punishable as one or more of the offenses specified in Subparagraph (1) above. (3) Proof that the applicant is required to register under the provisions of Section 290 of the State Penal Code. (4) Proof that the applicant has been convieted of any felony offense involving the sale of a controlled substance specified in Sections 11054, 11055, 11056, 11057 or 11058 of the State Health and Safety Code. (5) Proof that the applicant has been convicted in any other state of any offense whieh, if committed or attempted in this State, would have been punishable as one or more of the offenses specified in Subparagraph (4) above. (6) The applicant has previously violated the provisions of this Article or of any similar ordinance, law, rule or regulation of the County or any other public agency which regulates the operation o£ massage establishments. -5- (7) The applicant knowingly made a material misstatement of fact in the permit application. (c) The City Manager may grant the permit subject to such conditions and restrictions as he deems reasonable and necessary under the circumstances, including, without limitation, any or all of the following: (1) Restriction on hours of operation. (2) Parking requirements. (3) Prohibition against the sale or serving of food or beverages or the conducting of nonmassage business on the premises. The City Manager may grant the permit on a provisional basis whereby a further hearing will be conducted by the City Manager after a specified period of time to determine whether the applicant has complied with all of the conditions and restrictions of the permit and whether the findings set forth in Paragraph (a) of this Section can still be made. S4-55.090 Issuance of permit; duration; renewal (a) If the application for a massage establishment permit is granted by the City Manager pursuant to Section 4-55.080, the application shah then be returned to the Community Services Director together with a record of the proceedings conducted by the City Manager. The Community Services Director shall send {~ notice of the approval, and a statement of all conditions thereof, to the applicant and to the County Sheriff and the Planning Director. After full compliance by the applicant with all conditions imposed by the City Manager for issuance of the permit and provided no appeal has been filed from the decision of the City Manager and the period for such appeal has expired, the Community Services Director shall issue the permit. (b) A massage establishment permit issued pursuant to this Article shall remain in effect for such initial period as specified by the City Manager, not to exceed one year. (c) A massage establishment permit may be renewed upon application to the Community Services Director, received prior to the expiration date of the permit, accompanied by such documents as said Director may require and a renewal fee in such amount as established from time to time by resolution of the City Council. The Community Services Director shall have authority to renew the permit for a period not exceeding one year if he determines that all of the findings set forth in Subsection 4-55.080(a) can still be made and the applicant has fully complied with all of the conditions of the permit. The Community Services Director may in his discretion, or shall at the directire of the City Manager, refer the renewal application to the City Manager for the conduct of a public hearing and a decision on the renewal application, in which event the same procedure shall be followed as in the case of an application for an original permit. -6- S4-55.100 Application for certificate of registration (a) Application for a certificate of registration required by this Article shall be made to the Community Services Director on such form as he may prescribe. The application shall contain the following information. (1) The full name, present address, telephone number, birthdate and driver's license number of the applicant. (2) The two previous addresses immediately prior to the present address of the applicant, and the dates of residence at each. (3) Written proof that the applicant is over the age of eighteen years. (4) Written proof that: (i) The applicant has at least one year's experience as a massagist; or (ii) The applicant has been granted a diploma or certificate of graduation from a recognized school of massage; or (iii) The applicant is currently enrolled in a recognized school of massage, the date of initial enrollment in such school, the scheduled date of graduation, and evidence that the applicant has successfully completed thirty-five hours of instruction. In addition, the applicant shall submit a letter signed by the owner or operator of a massage establishment holding or applying for a permit hereunder stating the intention of such owner or operator to immediately employ the applicant to perform massage as a trainee working under the direct supervision of 8 massagist who possesses a current unrevoked certificate of registration or permit issued pursuant to this Article. (5) A statement identifying and fully describing any arrests or convictions of the applicant for either a felony or a misdemeanor. (6) The name and address of the establishment where the applicant is to be employed as a massagist and the name of the owner or operator of the same. (7) Such additional information as may be requested by the Community Services Director. (b) The application shall be accompanied by the payment of a non- refundable processing fee, in such amount as established from time to time by resolution of the City Council. -7- S4-55.110 Investigation of certificate application by Community Services Director;, referral to City Manager Upon receipt of the application and fee as required in Section 4-55.100, the Community Services Director shall make an investigation of the application and submit a report thereon to the City Manager. In eonneetion with such investigation, the Community Services Director shall forward a copy of the application to the County Sheriff for determination as to the moral character and background of the applicant, and to any other departments and agencies he deems appropriate for review of the. application. The Sheriff shall photograph and fingerprint the applieant. $4-55.120 Action by City Manager on certificate app~eation; grotmds for denial; conditions of approval (a) The City Manager may grant the application for a eertifieate of registration if, on the basis of the evidence submitted, the City Manager makes all of the following findings: (1) The applicant is of sufficient age and has the training or experience to be employed as a massagist and has satisfied all of the requirements set forth in this Article for issuance of a certificate of registration. (2) None of the grounds for denial of the certificate, as listed in Paragraph (b) of this Section, exist. (b) The City Manager may deny the application on any one or more of the following grounds: (1) Proof that the applieunt has been eonvicted of a violation of Section 266i, 315, 316, 318 or subdivision (b) of Section 64? of the State Penal Code. (2) Proof that the applicant has been convicted in any other state of an offense which, if committed or attempted in this State, would have been punishable as one or more of the offenses specified in Subparagraph (1) above. (3) Proof that the applicant is required to register under the provisions of Section 290 of the State Penal Code. (4) Proof that the applicant has been convicted of any felony offense involving the sale of a controlled substance specified in Sections 11054, 1055, 11056, 11057 or 11058 of the State Health and Safety Code. (5) Proof that the applicant has been convicted in any other state of any offense which, if committed or attempted in this State, would have been punishable as one or more of the offenses specified in Subparagraph (4) above. -8- (6) The applicant has previously violated the provisions of this Article or of any similar ordinance, law, rule or regulation of the County or any other public agency which regulates the operation of massage establishments or massagists. (7) That the applicant knowingly made a material misstatement of fact in the certificate application. S4-55.130 Issuanee of eertifieate; duration; renewal (a) If the application for a certificate of registration is granted by the City Manager pursuant to Section 4-55.120, the application shall then be returned to the Community Services Director together with a record of the proceedings conducted by the City Manager. The Community Services Director shall send a notice of the approval, and a statement of all conditions thereof, to the applicant and to the County Sheriff. After full compliance by the applicant with all conditions imposed by the City Manager for issuance of the certificate and provided no appeal has been filed from the decision of the City Manager and the period for such appeal has expired, the Community Services Director shall issue the certificate. (b) A certificate of registration issued pursuant to this Article shall be valid for a period of twelve months following issuance thereof; provided, however, the revocation or suspension of a massage establishment permit shall automatically revoke or suspend the certificates of registration issued to all persons employed at such establishment. (c) The City Manager may grant the certificate subject to such conditions and restrictions as he deems reasonable and necessary under the circumstances. (d) A certificate of registration may be renewed upon application to the. Community Services Director, received prior to the expiration date of the certificate, accompanied by a renewal fee in such amount as established from time to time by resolution of the City Council. The Community Services Director shall have authority to renew the certificate for a period of one year if he determines that all of the findings set forth in Subsection 4-55.120(a) can still be made. The Community Services Director may in his discretion, or shall at the directire of the City Manager, refer the renewal application to the City Manager for a decision thereon. S4-55.140 Permits and certificates non-transferable (a) A massage establishment permit issued pursuant to this Article shall not be assignable or transferable, either as to the named permittee or the location specified therein. The permit shall automatically terminate upon any attempted transfer thereof, or upon any sale or transfer of the property, if the permit was issued to the owner thereof, or upon any termination or assignment of the lease or other right of possession, if the permit was issued to the occupant of the property, or if, by reason of any other circumstances, the massage establishment is not being operated or managed by the person to whom the permit was issued. -9- (b) A certificate of registration issued pursuant to this Article shall not be assignable or transferable and any attempted transfer thereof shah .automatically invalidate the certificate. 64-55.150 Summsry suspension of permit or certificate Whenever it appears to the Sheriff or his representative or the City Manager that the holder of a massage establishment permit or certificate of registration is operating the establishment or practicing as a massagist in violation of this Article, or any other provision of this Code or federal or State law, and such violation endangers public health or safety, the Sheriff or his representative or the City Manager may summarily suspend the permit or certificate, or both, and order the holder thereof to immediately cease and desist operating the massage establishment or practicing as a massagist. Following issuance o£ such order and within thirty days thereafter, a hearing to revoke or modify the permit or certificate shah be hem in accordance with Section 4-55.160. Any permit or certificate holder whose permit or certificate is suspended pursuant to this Section shall not operate a massage establishment or practice as a massagist unless and until the City Manager or the City Council on appeal reinstates the permit or certificate under Section 4-55.160. If the permit or certificate is suspended by the Sheriff, a report on such action shall be furnished by the Sheriff to the City Manager within five days after the date of suspension. 64-55.160 Revocation or modification of permit or certificate (a) Any massage establishment permit or certificate of registration may be modified or revoked at any time by the City Manager, based upon any one or more of the following grounds: (1) That the permit or certificate was obtained by fraud; or (2) In the case of a permit or certificate issued subject to conditions, that any person making use of such permit or certificate is violating or has violated any conditions set forth therein; or (3) That the detriment to the public health or safety, or the nuisance arising from the conduct of the massage establishment or from changed circumstances necessitates the revocation of the permit or certificate or the modification or addition to conditions set forth therein; or (4) That an inadvertent error or omission in establishing the original conditions requires modifying or adding to such conditions, but a permit or certificate shall not be revoked because of such error or omission; or (5) That the permittee or certificate holder, as the case may be, has violated, or caused or permitted any other person to violate any provision of this Article or State or federal law in connection with the practice of massage or operation of a massage establishment; or -10- (6) That with respect to a massage establishment permit, any of the findings required under Subsection 4-55.080(a) can no longer be made, or with respect to a certificate of registration, any of the findings required under Subsection 4-55.120(a) can no longer be made. (b) The City Manager shall conduct a public hearing on the proposed modification or revocation of a massage establishment permit and notice thereof shall be given in the same manner as prescribed in Subsection 4-55.070(a). (e) If the City Manager determines that any of the grounds described in Paragraph (a) of this Section exist, the City Manager may, in lieu of revocation, modify any existing conditions of the permit or certificate and impose any new conditions as he deems necessary or appropriate to correct the situation. S4-55.1~0 Appeals to City Council Any decision by the City Manager or the Community Services Director under this Article may be appealed to the City Council by the applicant or any interested person in accordance with the procedure set forth in Section 2-05.030 of this Code. 64-55.180 Posting of sign, permit and eerti~eates (a) A legible sign identifying the use of the premises as a massage establishment shall be posted at the main entrance of the establishment. (b) The massage establishment permit shall be posted in a conspicuous place in the establishment. (c) Persons acting in the capacity of massagist shall have the certificate of registration issued to them posted in a conspicuous place in the establishment during the hours they are acting as such. S4-55.190 Notice of employees' status Every person holding a permit issued pursuant to this Article shall report immediately in writing to the Sheriff the employment or termination of massagists practicing in such establishment. $4-55.200 Massage establishment sanitary conditions AH massage establishments shall comply with the following requirements: (a) A minimum of one tub or shower, and one toilet and wash basin shall be provided. (b) Cabinets or other covered space shall be provided for the storage of clean linen. Approved receptacles shall be provided for the storage of all soiled linen and paper towels. -11- (c) All lavatories or wash basins shall be provided with hot and cold running water, soap and single service towels in wall~mounted dispensers. (d) Security deposit facilities capable of being locked by the patron or a security bag that may be carried by the patron shall be available for the protection of the valuables of patrons. (e) Every portion of a massage establishment, including appliances and apparatus, shall be kept clean and operative in a sanitary condition. (f) All massage establishments shall be equipped with clean and sanitary towels, sheets and linens in sufficient quantity. Towels, sheets and linens shall not be used by more than one person. Reuse of such linen is prohibited unless the same has first been laundered. Heavy white paper may be substituted for sheets; provided that such paper is used once for each person and then discarded into a sanitary receptacle. (g) All walls, ceilings, floors, pools, showers, bathtubs, and all physical facilities must be in good repair and maintained in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments and toilet rooms shall be thoroughly cleaned and disinfected each day the business is in operation. (h) Disinfecting agents and sterilizing equipment shall be provided for any instruments used in performing acts of massage and said instruments shall be disinfected and sterilized after each use. (i) Pads used on massage tables shall be covered with durable, washable plastics or other acceptable waterproof material. (j) Each service offered, the price thereof, and the length of time each service shall be performed shall be posted in a conspicuous location. All letters and numbers shall be capitals, and not less than one-half inch in height. S4-55.210 Outcall prohibited No person shall engage in any of the services permitted under this Article at any place other than an establishment for which a permit has been issued pursuant to this Article, unless the patron possesses and presents a valid prescription or other writing from a licensed physician to the effect that the patron of such services cannot be treated at a massage establishment. A record of every such prescription or writing shall be obtained and kept by the person rendering this service for a period of one year. Such record shall show the name and address of the doctor, the date and any prescription number. S4--55.9.20 App~eation to existing businesses The provisions of this Article shall be applicable to all massage establishments and all massagists conducting business within the City, regardless of whether such business was established before or after the effective date of this Article. -12- ~4-55.230 Violations of Article; penalties The violation of any provision of this Article, or the violation of any condition of a permit or certificate issued hereunder, shall constitute a misdemeanor and a public nuisance, subject to the penalties as prescribed in Chapter 3 of this Code. The enforcement of this Article pursuant to Chapter 3 shall be in addition to any proceedings conducted under Section 4-55.160 to amend or revoke a permit or certificate or any proceedings conducted under Article 4-05 of this Chapter to revoke a business license by reason of the same violation." SECTION 2: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Saratoga hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases may be held invalid or unconstitutional. SIgCYrION 3: This Ordinance shall be in full force and effect thirty days after its passage and adoption. ***** The above and foregoing Ordinance was regularly introduced and after the waiting time required by law, was thereafter passed and adopted at a regular meeting of the City Council held on the 7th day of October, 1987, by the following vote: AYES: Councilmembers Anderson, Clevenger, Hlava,-.Moyles, and Mayor Peterson NOES: None ABSENT: None ABSTAIN: None y~OR~~ Attest: ' ' and correct published accorc',;,ng to law. y erk -13-