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HomeMy WebLinkAboutOrdinance 278Section 3. Severance Clause. ORDINANCE NO. 278 An Ordinance amending Article 4 -55 of the Saratoga Municipal Code regarding Massage Establishments and Massage Practitioners Findings 1. The City of Saratoga wishes to update and clarify the standards applicable to Massage Establishments and Massage Practitioners (Article 4 -55). The provisions of the City of Saratoga City Code that relate to the practice of massage therapy were last updated in 1998. 2. California State Senate Bill 731, which became effective September 1, 2009, revised Business and Professions Code Sections 4600 et seq. and modified Cities' ability to regulate the practice of massage therapy. 3. The City of Saratoga intends to provide for the orderly regulation of the practice of massage therapy, in the interest of public health, safety, and welfare, and wishes to recognize the practice of massage therapy as a valid profession and discourage the use of massage therapy as a subterfuge to commit illegal or illicit activity. 4. The City Council of the City of Saratoga held a duly noticed public hearing on May 5, 2010 and after considering all testimony and written materials provided in connection with that hearing introduced and adopted this ordinance. Therefore, the City Council hereby ordains as follows: Section 1. Adoption. Article 4 -55 of the Saratoga City Code is hereby replaced in its entirety with the text shown in Exhibit A. Section 2. California Environmental Quality Act. Pursuant to the California Environmental Quality Act ( "CEQA "), this action is exempt under 14 California Code of Regulations ( "CEQA Guidelines ") section 15061(b)(3) (the amendments are exempt because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment). The City Council declares that each section, sub - section, paragraph, sub - paragraph, sentence, clause and phrase of this ordinance is severable and independent of every other section, sub- section, paragraph, sub - paragraph, sentence, clause and phrase of this ordinance. If any section, sub - section, paragraph, sub - paragraph, sentence, clause or phrase of this ordinance is held invalid, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of the portion held invalid, and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated. Section 4. Publication. This ordinance or a comprehensive summary thereof shall be published in a newspaper of general circulation of the City of Saratoga within fifteen days after its adoption. The foregoing ordinance was introduced and first reading waived at the regular meeting of the City Council of the City of Saratoga held on May 5, 2010, and was adopted by the following vote following a second reading on May 19, 2010: AYES: Councilmember Chuck Page, Howard Miller, Vice Mayor Jill Hunter, Mayor Kathleen King NAYS: None ABSTAIN: None ABSENT: Vacant (Susie Nagpal) ATTEST: Aim Sullivan, CLERK OF THE CITY OF SARATOGA Date: 5/20/ z /O APPROVED AS TO FORM: Richard Taylor, CITY ATTORNEY SIGNED: 111d. Kathleen M. King, MAYOR OF THE CITY OF SARATOGA 4- 55.010 Purpose. Exhibit A Article 4 -55 of the Saratoga Code Article 4 -55 MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS (a) In enacting these regulations the City Council recognizes that massage is a viable professional field offering the public valuable health and therapeutic services. (b) It is the purpose and intent of the City Council that the operation of massage establishments, massage practitioners, managing employees and persons offering massage be regulated in the interest of public health, safety and welfare by providing minimum building sanitation and health standards and to insure that persons offering massage shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered. (c) It is the intent of this Article to enact regulations to insure that those offering massage services are qualified and trained and can be expected to conduct their work in a lawful and professional manner. This Article implements State law providing for certification of massage practitioners and allows the practice of massage subject to either certification in accordance with those laws or a City massage permit. (d) The further intent of this Article is to establish regulations for the massage therapy profession that are reasonable and necessary to protect public health and safety and reduce the potential for illegal and illicit activity within the City of Saratoga. This Article is not intended to be exclusive and compliance with its provision shall not excuse noncompliance with any State or other local laws. 4- 55.020 Definitions. For the purpose of this Article, unless otherwise apparent from the context, certain words and phrases used in this Article are defined as follows: (a) Business massage means any massage of the neck, arms, shoulders and back area, above the waist where the client is fully clothed and done without the use of supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in this practice. (b) City Manager means the City Manager of Saratoga or his /her designee. (c) Managing employee means any employee of a massage establishment who has been designate by the holder of the massage establishment permit to manage the business in his /her absence. The managing employee may perform massages at the business only if 1 he /she obtains and maintains in effect a Massage Therapy Certificate or massage practitioner permit. (d) Massage means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, vibrating or stimulating the external parts of the human body with the hands, or any part of the body, or with the aid of any mechanical or electrical apparatus, or other appliances or devices, with or without such supplementary aids as rubbing alcohol, antiseptic, oil, powders, lotion, ointment, or other similar devices commonly used in this practice; or by baths, not limited to Turkish, Russian, Swedish, Japanese, vapor, shower, electric tub, mineral, fomentation, or any other type of bath. (e) Massage establishment means any establishment having a fixed place of business in the City in which massages are given in return for compensation of any type, including but not limited to any hot tub /sauna, or tanning establishment in which massage services are made available to clients, or any premises offering relaxation services. (f) Massage practitioner means any person who performs massage in return for compensation of any type. (g) Outcall massage service means the engaging in or carrying on of massage for consideration at a location other than a licensed massage establishment. (h) Permit means a written document authorizing the holder to engage in the business written on such document. (i) Person means any individual, partnership, firm, association, corporation, joint venture or any other combination of one or more individuals for the purpose of doing business. (j) Recognized school means any school or institution of learning which has been approved pursuant to California Education Code Section 94300 et seq. or other applicable state law or regulations, or any public school which requires a resident course of study of not less than one hundred hours within at least three months on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology and hygiene, and at least seventy -five hours of demonstration and practice of massage techniques, and which provides a diploma or certificate of graduation upon successful completion of such course of study or course work recognized by national professional massage or body therapy organizations. (k) Massage Therapy Certificate means a certificate issued pursuant to Division 2, Chapter 10.5 of the California Business and Professions Code (commencing at section 4600 and known as the Massage Therapy Act). 4- 55.030 Exemptions. 2 (a) The provisions of this Article shall not apply to persons licensed to practice any healing art or profession under the provisions of Division 2 of the California Business and Professions Code, or to persons working under the direction of any such licensed person in any hospital, nursing home or sanitarium; nor shall this Article apply to persons licensed as barbers or cosmetologists under the provisions of Division 3 of the California Business and Professions Code who administer such treatment in good faith in the course of licensed practice; nor shall this Article apply to accredited high schools, junior colleges, colleges and universities whose coaches and trainers are acting within the scope of employment. (b) The provisions of sections 4- 55.040 through 4- 55.090 of this Article shall not apply to massage practitioners or to managing employees who hold a valid Massage Therapy Certificate. (c) The provisions of sections 4- 55.040 through 4- 55.090 of this Article shall not apply to massage establishments that are a sole proprietorship, where the sole proprietor holds a valid Massage Therapy Certificate, or to massage establishments that employ or use only persons who hold a valid Massage Therapy Certificate to provide massage services. For purposes of this paragraph, a sole proprietorship is a business where the owner is the only person employed by that business to provide massage services. 4- 55.040 Permit required for massage establishment, managing employee, and massage practitioner. (a) Massage establishment permit. No person shall establish, operate or maintain a massage establishment within the City without first obtaining from the City Manager, and maintaining, a massage establishment permit. It is unlawful to operate, establish or maintain a massage establishment while the permit issued for such business has been suspended, revoked, or has expired. Only one permit (including a permit which has been suspended or revoked or is in the appeals process) shall be issued to a business location. No additional applications for permits will be accepted for locations which are in the appeals process, until the existing permit has expired, been revoked, or been surrendered by the applicant. (b) Managing employee permit. No person shall act as the managing employee for any massage establishment within the City unless he /she has obtained a managing employee permit from the City Manager. It is unlawful for any person to act as the managing employee of any massage establishment while his /her managing employee permit has been suspended, or revoked, or has expired. (c) (1) Massage practitioner permit. No person shall engage in the practice of massage, including outcall massage, in return for compensation of any type within the City without obtaining from the City Manager and maintaining in effect a massage practitioner permit. It is unlawful for any person to engage in the practice of massage in return for compensation while his/her massage practitioner permit has been suspended, revoked, or has expired. 3 (2) A person who obtains a massage establishment permit or a managing employee permit and plans to personally give massages at the business, shall also apply for and obtain a massage practitioner permit, and shall pay fees for administration of the written and practical examination pursuant to Section 4- 55.060. (d) The holder of any permit described in this section shall notify the City Manager within 30 days of any change in name, address, or other contact information listed in the permit. 4- 55.050 Educational and practical examination requirements for applicants for massage practitioner, massage establishment and managing employee permits. (a) Educational requirements. All applicants for a massage establishment permit, managing employee permit and/or massage practitioner permit, must meet either of the following educational standards in order to qualify for such permit: (1) Possession of a diploma or certificate of graduation from a recognized school of massage, college, junior college or university which shows satisfactory completion of at least three hundred hours of a nonrepetitive curriculum in anatomy, physiology, hygiene, sanitation, and massage theory, history, ethics and practice; or (2) Possession of diploma or certificate of graduation from a recognized school of massage, college, junior college or university which shows satisfactory completion of at least two hundred hours of a nonrepetitive curriculum in anatomy, physiology, hygiene, sanitation, and massage theory, history, ethics and practice and at least one hundred hours of documented experience under the direct supervision of a licensed massage practitioner, physical therapist, or other health professional who is duly licensed to practice his /her respective profession under the laws of the State. (b) Practical examination requirements. All applicants for a massage establishment permit, managing employee permit and /or massage practitioner permit shall take and pass a practical examination to demonstrate a basic knowledge of anatomy, physiology, hygiene, and the theory, practice, history, ethics and methods of massage. The examination shall be administered on behalf of the City, by a doctor or other licensed health professional selected by the City Manager. The City Manager shall establish procedures for the examinations in accordance with this Article. If the applicant fails the practical exam, he /she shall be permitted to retake the examination once, after at least thirty but no more than sixty days have elapsed from the date of the first examination, so long as the applicant pays the applicable examination fees for a second time and complies with City Manager procedures. If the applicant fails the examination a second time, the application shall be denied, and the applicant shall not be permitted to apply again for a massage establishment permit, managing employee permit or massage practitioner permit for a period of one year. (c) Exemption from educational and practical examination requirements and medical certificate. 4 (1) Applicants for a massage establishment permit or managing employee permit who sign a declaration under penalty of perjury that they will not personally engage in the practice of massage at the business are exempt from the educational and practical examination requirements set forth in this section and are exempt from obtaining a medical certificate. (2) Applicants for a massage practitioner permit who have completed at least three hundred hours of education and training at a recognized school and have passed the National Certification Examination for Therapeutic Massage and Body Work are exempt from the practical examination requirements set forth in this section. (d) Extension of time to complete educational requirements. Holders of business licenses issued by the City for at least one year before the effective date of this Article, engaged in the practice of massage within the City, and their employees who have been employed in the practice of massage by the business for at least one year before the effective date of this Article, shall be exempt from the educational requirements of subsection (a) of this Section if they have passed the practical examination set forth in this Section or hold a current valid certificate evidencing passage of the National Certification Examination for Therapeutic Massage and Body Work. Holders of a business license or massage practitioner permit issued by the City, before, but less than one year before, the effective date of this Article shall have a period of one year from the effective date of this Article to satisfy the educational requirements set forth in this Section. A one -year extension may be granted provided that the applicant can document that he or she has completed at least one -half of the necessary hours required to comply with the additional requirements of this Article. 4- 55.060 Applications for massage establishment permit, managing employee permit, massage practitioner permit and temporary massage practitioner permit. (a) Submittal of application. Every person, firm, corporation or partnership desiring to obtain a permit shall file a written application to the City Manager on a form provided by the City. (The applicant, firm, corporation or partnership shall designate one of its officers or partners to act as the responsible person for the business and will complete and sign all forms /applications required.) (b) The application form must contain the following information: (1) The full name, including any nicknames or other names used presently or in the past, and the present street address and phone number of the applicant; (2) The applicant's two most recent street addresses, and the dates of residence at each address; (3) The date of birth of the applicant; (4) The applicant's height, weight and color of eyes and hair; (5) The applicant's driver license number (if any) and social security number; 5 (6) The applicant's two most recent employers, including their names, street addresses, cities and phone numbers, and the position held by the applicant; (7) The names, street addresses and phone numbers of any massage establishment or any other business involving massage by which the applicant has been employed within the past ten years; and the dates of employment; (8) Any criminal conviction on the part of the applicant for offenses other than traffic violations within the ten years preceding the date of the application; (9) Whether the applicant has ever had a license, certificate, permit, or other authorization to engage in the practice of massage, or the operation of a massage establishment, or other business engaged in the practice of massage, suspended or revoked within the ten years preceding the date of the application, the dates and reasons for any such suspensions or revocations, and the name and location of the jurisdiction or agency which suspended or revoked such license, certificate, permit, or other authorization; (10) Whether the applicant, including applicant as a member of a corporation, business or partnership, has ever operated or been employed at any business which has been the subject of an abatement proceeding under the California Red Light Abatement Act (California Penal Code Sections 11225- 11325) or any similar laws in other jurisdictions. If the applicant has previously worked at such a business, he /she should state on the application the name and address of the business, the dates on which the applicant was employed at such business, the name and location of the court in which the abatement action occurred, the applicable case number and the outcome of the abatement action; (11) If the applicant is a partnership, the application shall set forth the names and street addresses of each general and limited partner. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership as filed with the County Clerk. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporate applicants shall apply to the corporate partner; (12) If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its article of incorporation or charter together with the state and date of incorporation and the full legal names and street addresses of each of its current officers and directors and each stockholder holding more than five percent of the stock of that corporation; (13) Whether the applicant has met the educational requirements set forth in this Article (except for cases involving applications for massage establishments or managing employee permits, when the applicant has filed a statement under penalty of perjury that he /she will not personally give massages at the massage establishment); (14) Whether the applicant has previously applied to the city for a massage establishment permit, managing employee permit, massage practitioner permit or temporary massage practitioner permit, the date of the application and every name(s) under which the application was made; (15) In the case of an application for a massage establishment permit or managing employee permit, the proposed name and street address of the massage establishment, together with the name and street address of any other massage business operated or managed by the applicant, within the ten years preceding the date of the application; 6 (16) In the case of an application for a massage establishment permit or managing employee permit, whether the applicant intends to personally provide massage services at the business; (17) A statement under penalty of perjury that the applicant has not made any false, misleading or fraudulent statements or omissions of fact in his/her application or any other documents required by the City to be submitted with the application; (18) The name and street address of the owner or renter and the lease holder of proposed premises of which application is made. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the property that a massage establishment will be located on the property; (19) In the case of a massage establishment application, proof of massage malpractice insurance in the sum of no less than one million dollars; (20) A description of any other business to be operated on the same premises, or on adjoining premises, owned or controlled by applicant; (21) Authorization for the City, its agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant and responsible managing officer. (c) Submittal of documentation. Applicants shall also submit the following information at the time of their application: (1) A birth certificate or other proof that the applicant is at least eighteen years of age; (2) A certificate from a physician, which includes the physician's street address and phone number, and states that the applicant is free from communicable diseases or other conditions which could interfere with his /her ability to engage in the practice of massage, to the public, in a safe and healthful manner Communicable disease testing is required for Hepatitis B and tuberculosis. The medical exam must have been completed within sixty days of the permit application; (3) A diploma, certificate of graduation, transcript, or other written proof acceptable to the City Manager that the applicant has met the educational requirements set forth in this Article, unless in the case of applications for a massage establishment permit or managing employee's permit the applicant has submitted with the application a written statement under penalty of perjury that he /she will not personally give massages at the establishment; (4) Other related information requested by the City Manager in order to confirm the identity of the applicant and evaluate the background and qualifications of the applicant for the permit sought; (5) Documentation to prove that the applicant has a lawful right to work in the United States. (d) Payment of massage establishment permit, managing employee permit or massage practitioner permit fees. At the time of submitting an application for a permit(s) the applicant shall pay all permit fees, examination fees and investigation fees (to defray the cost of the investigation required by this Article). Applicants who will need the services of an interpreter for their written and /or practical examination shall also pay a fee to cover the cost of these services. All fees shall be nonrefundable, except that the City shall 7 refund examination fees if the application is denied before the applicant takes the written and/or practical examination. All fees will be set forth in the City fee schedule. A copy of the receipt(s) shall accompany the application. 4- 55.070 Processing of application, investigation. (a) Processing of application, investigation. Upon receipt of an application for a permit(s) the City Manager shall review the application and supplementary material. If it is clear from the face of the application and supplementary materials that the applicant is not qualified for the permit(s) sought, the application may be denied without further investigation or testing. If it appears from the face of the application and supplementary material that the applicant may be eligible for the permit(s) sought, the City Manager may issue a temporary massage practitioner permit pursuant to Section 4- 55.040(d), and shall verify the information submitted by the applicant and shall further investigate the qualifications of the applicant as follows: (1) Photographs /fingerprints /review of criminal history. The City Manager shall photograph the applicant and take a full set of the applicant's fingerprints and shall submit the fingerprints to the Department of Justice (DOJ) and to the Federal Bureau of Investigation (FBI) for evaluation. Upon receipt of the report from the DOJ and FBI, the City Manager shall review the criminal history (if any) of the applicant. (2) Investigation of location and premises of massage establishment. Upon receipt of an application for a massage establishment permit, the City Manager shall refer the application to the City's fire, building, planning, health and code enforcement departments, who shall review the application and inspect the premises to ensure that the designated site will comply with applicable City zoning, building, fire safety ordinances, and any other applicable City ordinances; (3) Additional investigation. The City Manager may conduct additional investigations in a manner authorized by law when necessary to determine if the applicant meets the qualifications for a permit pursuant to this Article. 4- 55.080 Action by city manager on permit application; grounds for denial. (a) Grant or denial of application for massage establishment permit, managing employee permit or massage practitioner permit. The City Manager shall grant or deny the application for a permit(s) within ninety days of the applicant's submission of a completed application and all required supplementary material. When necessary, the City Manager may extend the time in order to conduct a complete investigation and hearing. (b) Granting of application. In considering a massage establishment permit, 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: 8 (1) The property on which the massage establishment will be conducted and the operation thereof complies with all building, zoning, fire, health and safety codes and with the requirements of this Article; (2) The proposed location of the massage establishment is in accord with the objectives of the zoning ordinance and the purposes of the district in which the site is located; (3) None of the grounds for denial of the permit, as listed in subsection (j) 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. (c) Conditional granting of application. In considering a massage establishment permit the City Manager may grant the application subject to such conditions and restrictions as he /she 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. (d) Notice. If the application for a permit is granted pursuant to this Section, the City Manager shall send a notice of the approval, and a statement of all conditions thereof, to the applicant and to the Sheriff and all appropriate staff. 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 City Manager shall issue the permit. (e) Expiration and renewal of massage establishment permit, managing employee permit and massage practitioner permit. All permits shall expire one year after the date of their issuance, unless revoked sooner by the City Manager. Applications for renewal of permits must be submitted to the City Manager no later than sixty days prior to the expiration of such permit on a form provided by the City, which shall require the applicant for renewal to update the information contained in the original application. (1) Medical certificate; renewal. Any applicant requesting the renewal of a massage practitioner permit must also submit, with the renewal application, a certificate from a medical doctor stating that the applicant has, within the past thirty days immediately prior to the filing of the application, been examined and found to be free from any communicable disease capable of being transmitted to the public or to fellow employees by the type of conduct and interaction involved in the performance of massage. (g) Fee; renewal. The applicant must pay the City a nonrefundable fee set forth in the City fee schedule, at the time of filing the application for renewal. After investigating the 9 application for renewal, the City Manager may renew the permit(s) if the applicant continues to meet the standards for the issuance of a permit and none of the grounds for denial of a permit set forth in this Article exist. (h) Notice. The City Manager shall give the applicant for renewal written notice of his/her decision within sixty days of the submittal of the completed application for renewal. If the application is denied, the notice shall be sent via certified mail and shall state the specific grounds for the denial and notify the applicant that he /she may appeal through the procedures set forth in this Article. (i) Failure to file timely notice. If the holder of the permit does not file a completed renewal application at least sixty days prior to the expiration of the permit or certificate, the applicant shall be required to file an application for a new permit and will be required to pay the applicable fees for a new permit. (j) Grounds for denial of application. The City Manager shall deny an application if any of the following circumstances exist: (1) The application is incomplete and /or required supplementary materials are not submitted within thirty days of the date of application; (2) The applicant does not have proof of the required educational requirements, unless the applicant is exempt from these requirements as established in this Article, and can show proof of qualifications for exemption; (3) The applicant has previously had a massage establishment permit, managing employee permit, massage practitioner permit, or any similar license, certificate or permit revoked by the City or any other public agency; (4) The applicant has made a false, misleading or fraudulent statement or omission of fact in his/her application or other materials submitted with the application; (5) The applicant, including applicant as a corporation or partnership, or former employer of the applicant while the applicant was so employed, has been successfully prosecuted under the Red Light Abatement Act (California Penal Code Sections 11225 through 11325) or any similar laws in another jurisdiction; (6) The applicant has been convicted of: (i) An offense which requires registration pursuant to California Penal Code Section 290, or a violation of Penal Code Sections 266 (i), 311 through 311.7, 314, 315, 318, 647(b) or (d), or equivalent offenses under the laws of another jurisdiction, even if expunged pursuant to Penal Code Section 1203.4, (ii) A prior offense which involves violation of California Health and Safety Sections 11351, 11352, 11358 through 11363, 11378 through 11380, 11054, 11056, 11057, 11058, any other violation(s) involving illegal possession for sale, or sales of a controlled 10 substance, or equivalent offenses under the laws of another jurisdiction, even if expunged pursuant to Penal Code Section 1203.4, (iii) Any offense involving the use of force or violence upon another person, (iv) Any offense involving sexual misconduct with children, or (v) Any offense involving theft; (7) The operation of the massage establishment at the proposed site would violate the City's Zoning, Building, Fire Regulations, or other provisions of the City ordinances; (8) Any violation of this Article if previously licensed at any other location during the pendency of the application. (k) Notice to applicant of grounds for denial of application. The City Manager shall give written notice of the grounds for denial to the applicant for a permit. If the application is denied, the notice shall be by certified mail, return receipt requested, and /or hand delivered to the managing employee on the business premises; and shall advise the applicant of his /her right to appeal the decision. (1) Appeal of denial of application for a permit. Upon the denial of an application for a permit, the applicant may appeal through the following procedures: (1) The applicant shall file a written request for an appeal hearing, which states the specific grounds on which the decision of the City Manager to deny the permit is contested, within ten days after service of the notice of the written decision, by deposit of the notice, addressed to the holder of the permit, by certified mail and/or by hand delivery. At the time of submitting the written request for an appeal hearing, the applicant shall pay an appeal hearing fee, set forth in the City fee schedule, to help defray in part the additional cost to the City. If the applicant does not request an appeal hearing within the ten day period, no further notice is required and the application will remain denied. (2) In order to hear and decide appeals of denials of applications for permits made by the City Manager, there shall be and is created a Board of Appeals consisting of members appointed by the City Council. The City Manager shall be an ex officio member and shall act as Secretary to such Board but shall have no vote upon any matter before the Board. Copies of any rules or regulations adopted by the Board shall be delivered to the City Manager, who shall make them freely accessible to the public. The Board shall have no authority to waive requirements of this Article. (3) As soon as practicable after receiving the written appeal, the Secretary of the Board of Appeals shall fix a date, time and place for the hearing of the appeal by the Board. Such date shall not be less than five working days nor more than thirty working days from the date the appeal was filed with the City Manager. Written notice of the time and place of the hearing shall be given by certified mail at least five working days prior to the date of the hearing to the appellant by the Secretary of the Board either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address shown on the appeal. 11 (4) Failure of an applicant to file an appeal in accordance with the provisions set forth in this Section shall constitute a waiver of the right to an administrative hearing and adjudication of the notice and order or any portion thereof. (5) At the hearing both the appellant and the City shall have the right to appear and be represented by counsel and to present evidence and arguments which are relevant to the grounds for the appeal. (6) Within ten working days of the hearing, the Board shall issue a written decision which states whether the decision of the City Manager is upheld, modified or reversed. The decision of the Board shall be served on the appellant by certified mail, return receipt requested. The decision of the Board shall be final. 4- 55.090 Permits nontransferable. 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. 4- 55.095 Business License and Permit or Massage Therapy Certificate Required. (a) Business license. Any person desiring to operate a massage establishment shall also apply for and obtain a business license pursuant to Article 4 -05 of this Code and pay the license fee specified therein. No such business license shall be issued unless and until the applicant has first obtained a valid permit under this Article or provided evidence that the applicant holds a valid Massage Therapy Certificate. (b) Current permit or certificate required. No person shall accept or continue employment as a massage practitioner at any massage establishment in the City unless the owner or operator of such establishment holds a current permit issued pursuant to this Article or a valid Massage Therapy Certificate. 4- 55.100 Registration and notification requirements. (a) Every massage establishment shall: (1) Provide the City of Saratoga with a copy of the massage practitioner permit or Massage Therapy Certificate of every person who is employed or retained by the business or establishment to provide massage therapy, within 30 calendar days of the commencement of such person's period of employment; and 12 (2) Maintain on its premises a copy or other evidence of each such massage therapy license or Massage Therapy Certificate for review by the City of Saratoga. 4- 55.110 Hours of operation. No holder of a permit issued pursuant to this Article, and no nonexempt massage business or establishment, or massage business or establishment described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, shall provide massage therapy to the public for compensation between the hours of ten p.m. and seven a.m. of the following day. 4- 55.120 Prohibited advertising practices. (a) It is a violation of this Article for any person who does not possess a valid Massage Therapy Certificate or permit issued pursuant to this Article, and for any massage business or establishment that employs or retains such a person, to: (1) State or advertise or put out any sign or card or other device, or to represent to the public through any print or electronic media, that such person is certified, registered or licensed by a governmental agency as a massage therapist or massage practitioner; or (2) Hold oneself out or use the title of "certified massage therapist," "certified massage practitioner," or any other term, such as "licensed," "registered," or "CMT," that implies or suggests that such person is the holder of a Massage Therapy Certificate or permit issued pursuant to this Article. (b) It is a violation of this Article for any massage business or establishment, licensee, or any other person providing massage therapy to the public for compensation, to advertise through any print or electronic media that is classified for adults only or similar classification. 4- 55.130 Minors. It shall be unlawful for any holder of a permit issued pursuant to this Article, nonexempt massage business or establishment, and for any massage business or establishment described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, to: (a) Employ or retain any person who is under the age of 18 years to provide any massage therapy to the public for compensation; or (b) Provide massage therapy to any person who is under the age of 18 years, except at the special instance and request of a parent or other person in lawful custody of the minor 4- 55.140 Physical facility and building code requirements. 13 The following physical facility and building code requirements shall be applicable to all holders of massage establishment permits issued pursuant to this Article, nonexempt massage businesses or establishments, and to all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code: (a) Except when there is no staff available to assure security for massage therapy patrons and staff who are behind closed doors, no massage therapy may be carried on behind locked, closed doors. (b) All doors to dressing rooms, toilet rooms and massage therapy rooms or cubicles shall open inward and shall be self - closing. Draw drapes, curtain enclosures, or accordion - pleated closures in lieu of doors are acceptable on all inner dressing rooms and massage therapy rooms or cubicles. (c) Minimum lighting equivalent to at least one 40 -watt light shall be provided in each massage therapy room or cubicle. (d) A massage table shall be used for all massage therapy, with the exception of "Thai," "Shiatsu," and similar forms of massage therapy, which may be provided on a padded mat on the floor, provided the patron is fully attired in loose clothing, pajamas, scrubs or similar style of garment. The tables should have a minimum height of 18 inches. Beds, floor mattresses and waterbeds are not permitted on the premises of the business or establishment. (e) All locker facilities that are provided for the use of patrons shall be fully secured for the protection of the patron's valuables, and the patron shall be given control of the key or other means of access. (f) The business or establishment shall comply with the following state building standards as adopted at Chapter 16 of this Code: (1) Have a system of adequate ventilation in accordance with the provisions of Section 705 of the Uniform Building Code of 1982, as referenced in Part 2, Chapter 7 of the matrix adoption tables, of Title 24 of the California Code of Regulations. (2) Have a supply of hot and cold running water in accordance with Part 5, Section 1001(d)(1), of Title 24 of the California Code of Regulations. (3) Have a supply of potable drinking water in accordance with Part 5, Section 1001(d)(3), of Title 24 of the California Code of Regulations. (4) Provide hand washing facilities in accordance with Part 5, Section 1001(d)(2), of Title 24 of the California Code of Regulations. 14 (5) Provide public toilet rooms in accordance with Part 5, Sections 910(b) and 910(c), and Table No. C -1, of Title 24 of the California Code of Regulations. 4- 55.150 Health and safety requirements. The following health and safety requirements shall be applicable to all holders of massage establishment permits issued pursuant to this Article, all nonexempt massage businesses or establishments, and to all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code: (a) The business or establishment shall at all times be equipped with an adequate supply of clean sanitary towels, coverings and linens, and all massage tables shall be covered with a clean sheet or other clean covering for each patron. After a towel, covering or linen has once been used it shall be deposited in a closed receptacle and not used until properly laundered and sanitized. Towels, coverings and linens shall be laundered either by regular commercial laundering or by a noncommercial laundering process which includes immersion in water at least 140 degrees Fahrenheit for not less than 15 minutes during the washing or rinsing operation. Clean towels, coverings and linens shall be stored in closed, clean cabinets when not in use. (b) All massage therapy rooms or cubicles, wet and dry heat rooms, toilet rooms, shower compartments, and hot tubs and pools shall be thoroughly cleaned and disinfected as needed, and at least once each business day the premises are open and such facilities are in use. All bathtubs shall be thoroughly cleaned and disinfected after each use. (c) All liquids, creams, or other preparations used on or made available to patrons shall be kept in clean and closed containers. Powders may be kept in clean shakers. All bottles and containers shall be distinctly and correctly labeled to disclose their contents. When only a portion of a liquid, cream or other preparation is to be used on or made available to a patron, it shall be removed from the container in such a way as not to contaminate the remaining portion. (d) No invasive procedures shall be performed on any patron. Invasive procedures include, but are not limited to: (1) application of electricity which contracts the muscle; (2) application of topical lotions, creams, or other substances which affect living tissue, such as chemical peel preparations or bleaches; (3) penetration of the skin by metal needles; (4) abrasion of the skin below the nonliving, epidermal layers; (5) removal of skin by means of any razor -edged instrument or other device or tool; and (6) any needle- like instrument which is used for the purpose of extracting skin blemishes and other similar procedures. (e) All bathrobes, bathing suits and /or other garments that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be laundered after each use pursuant to subsection A of this section. 15 (f) All combs, brushes, and/or other personal items of grooming or hygiene that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be fully disinfected after each use. (g) No patrons shall be allowed to use any shower facilities of the business or establishment unless such patrons are wearing slip - resistant sandals or flip -flops while in the shower compartment. All footwear such as sandals or flip -flops that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be fully disinfected after each use. (h) The patron's genitals, pubic area, anus, and female patron's breasts below a point immediately above the top of the areola must be fully draped at all times while any employee of the business or establishment is in the massage therapy room or cubicle with the patron. No massage therapy shall be provided to a patron that results in intentional contact, or occasional and repetitive contact, with the genitals, anus, or areola of a patron. 4- 55.160 Attire and physical hygiene requirements. The following attire and physical hygiene requirements shall be applicable to all holders of a permit pursuant to this Article, and to all massage therapists and massage practitioners who are employed or retained by a nonexempt massage business or establishment, or by a massage business or establishment described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code: (a) All persons shall be clean and wear clean and sanitary outer garments at all times. All outer garments shall be of a fully opaque, nontransparent material and provide complete covering from at least the mid -thigh to two inches below the collarbone. The midriff may not be exposed. (b) All persons shall thoroughly wash their hands with soap and water or any equally effective cleansing agent immediately before providing massage therapy to a patron. No massage therapy shall be provided upon a surface of the skin or scalp of a patron where such skin is inflamed, broken (e.g., abraded, cut) or where a skin infection or eruption is present. (c) No person afflicted with an infection or parasitic infestation capable of being transmitted to a patron shall knowingly provide massage therapy to a patron, or remain on the premises of a massage business or establishment while so infected or infested. Infections or parasitic infestations capable of being transmitted to a patron include, but are not limited to: (1) cold, influenza or other respiratory illness accompanied by a fever, until 24 hours after resolution of the fever; (2) streptococcal pharyngitis ( "strep throat "), until 24 hours after treatment has been initiated and 24 hours after resolution of fever; (3) purulent conjunctivitis ( "pink eye "), until examined by a physician and approved for return to work; (4) pertussis ( "whooping cough "), until five days of antibiotic therapy has been completed; (5) varicella ( "chicken pox "), until the sixth day after onset of rash or sooner if all lesions have dried and crusted; (6) mumps, until nine days after onset of 16 parotid gland swelling; (7) tuberculosis, until a physician or local health department authority states that the person is noninfectious; (8) impetigo (bacterial skin infection), until 24 hours after treatment has begun; (9) pediculosis (head lice), until the morning after first treatment; and (10) scabies ( "crabs "), until after treatment has been completed. Blood -borne diseases, such as HIV /AIDS and hepatitis B (HBV), shall not be considered infectious or communicable diseases for the purpose of this subsection. 4- 55.170 Inspection by government officials. (a) All holders of a permit issued pursuant to this Article, nonexempt massage businesses or establishments, and all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, shall permit representatives of the county health department, the City of Saratoga, Fire Department, Community Development Department, and /or other City or county departments or agencies, to conduct a reasonable inspection of the public areas of and areas otherwise open to plain view on or within the premises, to the extent allowed by law and during the regular business hours of the business or establishment, for the purpose of ensuring compliance with state and local law, including, but not limited to, Chapter 10.5 (commencing with Section 4600) of the California Business and Professions Code, the requirements of this Code, or other applicable fire and health and safety requirements. (b) Nothing in this section shall be deemed to prohibit the above - described government officials from pursuing any and all available legal remedies to secure entry into and inspection of the premises of the business or establishment if such entry is refused, or for any other reason allowed by law. (c) It is a violation of this Article for the business or establishment to prohibit or interfere with such lawful inspection of the premises at any time it is open for business. 4- 55.180 Owner and operator responsibility — Denial, revocation, restriction or suspension of business license. The following provisions shall apply to all holders of a permit issued pursuant to this Article, all nonexempt massage businesses or establishments, and all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code: (a) For the purpose of enforcement of the requirements of this Article, all owners and operators of the business or establishment shall be responsible for the conduct of all of its employees, agents, independent contractors or other representatives, while on the premises of the business or establishment or providing massage therapy. (b) Notwithstanding any provision of Article 4 -05 of this Code, the City may: 17 (1) Require a business or establishment regulated by this Article, in its application for a business license, or for the renewal of a business license, to provide information relevant to the administration of this Article; (2) Make reasonable investigations into the information so provided; (3) Charge a business licensing fee sufficient to cover the costs of the business licensing activities regulated by this Article; and (4) Deny, revoke, restrict or suspend a business license for either of the following causes: (a) an employee, agent, independent contractor or other representative of the business or establishment has committed a violation of this Article, or of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business or Professions Code; or (b) the business or establishment has provided materially false information in its application for a business license. 4- 55.190 Remedies cumulative — Each day a separate offense. Any person subject to this Article who personally, or through an agent, employee, independent contractor or other representative, violates any provision of this Article shall be guilty of a separate offense for each and every day during any portion of which any such violation is committed, continued or permitted by such person. All remedies provided herein shall be cumulative and not exclusive. 4- 55.200 Public nuisance. Any use or condition caused or permitted to exist in violation of any of the provisions of this Article shall be and is hereby declared a public nuisance and, as such, may be abated or enjoined from further operation pursuant to Chapter 3 of this Code. 4- 55.210 Criminal penalties. Any person subject to this Article who personally, or through an agent, employee, independent contractor or other representative, violates any provision of this Article commits a misdemeanor. Any person convicted of a misdemeanor shall be subject to punishment by fine and /or imprisonment to the maximum extent permitted by state law. 4- 55.220 Civil injunction. The violation of any provision of this Article shall be and is hereby declared to be contrary to the public interest and shall, at the discretion of the City, create a cause for injunctive relief. 4- 55.230 Administrative fines and costs. 18 In addition to the remedies set forth above, any person subject to this Article who personally, or through an agent, employee, independent contractor or other representative, violates any provision of this Article may be subject to administrative fines and costs, pursuant to Chapter 3 of this Code. 19 PROOF OF PUBLICATION (2015.5 C.C.P.) State of California County of Santa Clara I am a citizen of the United States and a resident of the County aforesaid: I am over the age of 18 years, and not party to or interested in the above entitled matter. I am the principal clerk of the printer of the: Saratoga News 14375 Saratoga Avenue, Suite E2 Saratoga, California, 95070- 59789, a newspaper of general circulation, printed every Wednesday in the City of San Jose, California, County of Santa Clara, and which newspaper has been adjudged a newspaper of general circulation by the Superior Court of the County of Santa Clara, State of California, Case number 3281 -48, dated June 2, 1975 that the notice of which the annexed is a printed copy (set in type not smaller than nonpareil has been published in each regular and entire issue of said newspaper and not in any supplement thereof on the following dates, to wit: June 1, 2010 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Dated: June 1, 2010 San Jose, California AbliW ■NorY.,A1 Macy Sutherland Filing Stamp PROOF OF PUBLICATION CITY OF SARATOGA SUMMARY OF ORDI- N ANCE N0. 278 AMENDING ARTICLE 4-55 OF THE SARATOGA CODE CONCERNING MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITION- O N MAY 19, 2010 THE CITY COUNCIL OF THE CITY OF SARATOGA ADOPTED THE ABOVE ORDINANCE AMENDING ARTICLE 4-55 OF THE SARATOGA CRY CODE IN ITS ENTIRETY CONCERN- ING MASSAGE ESTAB- LISHMENTS AND MAS- SAGE PRACTITIONERS Comprehensive Summa- ry California State Senate Bill 731, which became effective September 1, 2009, revised Business and Professions Code Sections 4600 et seq. to establish a certificate program • abisments and practitioners and to lim- it Cities' ability to regu- late the practice of mas- sage therapy. Ordi- nance No. 278 amended Article 4 -55 of the Sara- toga Code in its entirety to conform to the state law. As amended, Arti- cle 4 -55 (1) requires massage establish- ments and massage practitioners to obtain either a certification in accordance with the State law or a permit pursuant to procedures specified in the City Code (2) establishes standards for the opera- tion of massage estab- lishments to protect public health and safety, (3) provides for inspec- tions of massage estab- lishments, (4) specifies permitted hours of oper- ation, (5) prohibits cer- tain advertising practi- ces, (6) regulates prac- tice of massage by and for minors, (7) specifies physical facility and building code require- ments, health and safe- ty requirements, and at- tire and physical hy- giene requirements; and (8) provides for enforce- ment of the ordinance requirements. The ordinance was adopted on Wednesday, May 19, 2010. The full text of the ordinance is available for review at www.saratoga.ca.us and in the office of the City Clerk at 13777 Fruitvale Avenue, Sara - toga, Califomia during regular business hours. Councilmembers voting for the ordinance:Chuck Page, Howard Miller, Vice Mayor Jill Hunter, Mayor Kathleen King Councilmembers voting against the ordinance: None /s/ Ann Sullivan, City Clerk PINT: June 1, 2010