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HomeMy WebLinkAbout71.173 ORDINANCE NO. 71- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SARATOGA REPEALING ARTICLE 4-55 OF CHAPTER 4 AND ADDING ARTICLE 4-55 TO CHAPTER 4 OF THE CODE OF THE CITY OF SARATOGA RELATING TO MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS The City Council of the City of Saratoga hereby Ordains as follows: Section 1. Article 4-55 of Chapter 4 of the Code of the City of Saratoga is hereby repealed in its entirety. Section 2. Article 4-55 of Chapter 4 of the Code of the City of Saratoga is hereby added to read as follows: - - F:\WPDMVINRSWX273\ORD.98XIVIASSAGE.APL Article 4-55 MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS 4-55.010 Purpose. 4-55.020 Definitions. 4-55.030 Exemptions. 4-55.040 Permit Required For Massage Establishment, Managing Employee, Massage Practitioner And Temporary Massage Practitioner 4-55-050 Educational and practical examination requirements for applicants for massage practitioner, massage establishment and managing employee permits 4-55.060 Applications for massage establishment permit, managing employee permit, massage practitioner permit, and temporary massage, practitioner permit 4-55.070 Processing of Application, Investigation 4-55.080 Action by City Manager on permit application; grounds for denial 4-55.090 Permits non-transferable 4-55. 100 Inspection by officials 4-55.110 Operating requirements for massage establishments 4-55. 120 Massage establishment sanitary conditions 4-55.130 Hot tub/sauna, tanning establishment and operation requirements 4-55.140 Notice of employees' status 4-55. 150 Suspension and revocation of permits 4-55.160 Prohibited acts 4-55.170 Application of this Article to preexisting massage establishments and persons engaged in the practice of massage 4-5 5.18 0 Violations of Article; penalties ~ ~,, F:\WPDWINRSW'x273\ORD.98XMASSAGE.APL 2 Article 4-55 MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS 4-55.010 Purpose. In enacting these regulations the City Council recognizes that massage is a viable professional field offering the public valuable health and therapeutic services. It is the purpose and intent of the City Council that the operation of massage establishments, massage practitioners, managing employee 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. 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. The City Council finds that existing controls have not satisfactorily addressed or regulated serious police problems and regulated the profession so as to discourage the use of the profession for objectionable and illegal purposes. 4-55.020 Definitions. For the purpose of this Article, unless othen~ise 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 F:\WPDXIVINRSW~273\ORD.98M~4ASSAGE.APL 3 perform massages at the business only if he/she obtains and maintains in effect a 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 fnced 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 said document. (i) "Person" means any individual, partnership, finn, association, corporation, joint venture or any other combination of one or more indMduals 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 I00 hours within at least three (3) 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 (75) 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 F:\WPDMMNP, SW~273\ORD.98MMASSAGE.APL 4 organizations. (k) "Temporary massage practitioner permit" means a permit to engage in the practice of massage for a limited period. Every temporary massage practitioner permit shall be subject to the provisions of Section 4-55.040(d) of this Article. (1) "Working under the supervision" means the person is an employee of a licensed medical professional, is working at the same location as the licensed medical professional, and has his/her work directed by the licensed medical professional. 4-55.030 Exemptions. 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. 4-55.040 Permit Required For Massage Establishment, Managing Employee, Massage Practitioner And Temporary 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 pennits 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 F:\WPDMMNRSW~.73\ORD.98MMASSAGE,APL 5 obtained a managing employee permit from the City Manager. It shall be 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) 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 shall be 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. 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) Temporary massage practitioner permit. A temporaW massage practitioner permit may be issued by the City Manager only upon the following express conditions: ( 1 ) The application is made to work in a massage establishment in continuous operation, not less than eight (8) hours a day, five (5) days a week for twenty-four (24) consecutive months preceding the date of the application; (2) The holder of the massage establishment permit furnishes a written statement to the City Manager acknowledging that he/she intends to employ the applicant for a temporaW massage practitioner permit and then in the event that permit expires or a permanent massage practitioner permit is denied by the City Manager, employment of such applicant will be immediately and permanently discontinued; (3) The application is filed for a massage practitioner permit and all required fees are paid for the permit; the application is entirely complete at the time of filing and the applicant meets. allcriteria for a massage practitioner permit; (4) If required, the practical massage examination must be successfully completed by the applicant; F:\WPDMMNRSWX273\ORD,98MMASSAGE.APL 6 (5) Upon any violation of this Article occurring in the massage establishment, the temporary massage practitioner permit shall be forthwith rendered null and void and shall be surrendered to any employee or agent of the City upon request; (6) A temporary massage practitioner permit shall expire upon issuance of a massage practitioner permit, or the expiration of ninety (90) days from the date of application, whichever comes first; (7) There shall be no appeal from denial of a temporaW massage practitioner permit. (e) Business License Required. 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 free specified in Section 4-05.100. No such business license shall be issued unless and until the applicant has first obtained a valid permit under this Article. (f) Current Permit 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 unrevoked permit isiued pursuant to this Article. 4-55-050 Educational ~nd 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 300 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 F:\WPDMMNRSW~73\ORD.98MMASSAGE.APL 7 recognized school of massage, college, junior college, or university which shows satisfactory completion of at least 200 hours of a nonrepetitive curriculum in anatomy, physiology, hygiene, sanitation, and massage theory, history, ethics and practice and at least 100 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 exam. ination 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 (30) but no more than sixty (60) 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 of massage practitioner permit for a period of one year; (c) Exemption from educational and practical examination requirements and medical certificate: (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 above and are exempt from obtaining a medical certificate. (2) Applicants for a massage practitioner permit ,who have completed at least 300 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 above. F:\WPDLK4NRSW~273\ORD.98MMASSAGE.APL 8 (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 paragraph (a) of this Section if they have passed the practical examination set forth above 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 above. 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.) 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 (2) 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; F:\WPDXIVlNRSW~273\ORD.98MVIASSAGE.APL 9 (6) The applicant's two (2) 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 (10) years; and the dates of emplo)qnent; (8) Any criminal conviction on the part of the applicant for offenses other than traffic violations within the ten (10) 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 (10) 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 F:\WPDXMNRSW~273\ORD.98XMASSAGE.APL i 0 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 5 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 periury 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 (10) years preceding the date of the application; (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 F:\WPDXMNRSW'X273\ORD.98'tMASSAGE.APL I 1 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 realpractice insurance in the sum of no less than $ i ,000,000; (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 of Saratoga, 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. (b) Submittal of documentation. Applicants shall also submit the following information at the time of their application: ( i ) A birth certificate or other proof that the applicant is at least eighteen (18) 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 F:\WPDXIVlNRSWX273\ORD.98XMASSAGE.ApL ] 2 background and qualifications of the applicant for the permit sought; (5) Documentation to prove that the applicant has a lawful fight to work in the United States. (c) 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 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 F:\WPDMMNRSW~2.73\ORD.98XMASSAGE.APL 13 the City's fire, building, planning, health and code exfforcexnent 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 (90) 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 ~nay 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 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 Paragraph (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 F:\WPDLMNRSWX273\ORD.98MMASSAGE.APL 14 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: ( i ) 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 (60) 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. (f) 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 (30) 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 F:\WPDXMNRSW~73\ORD.98XMASSAGE.APL ] 5 application for renewal. After investigating the 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 AKicle exist. (h) Notice. The City Manager shall give the applicant for renewal written notice of his/her decision within sixty (60) 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 (60) 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 (30) 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 F:XWPD~VlNRSWX273\ORD.98XMASSAGE.APL 16 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 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; (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. F:\WPDWINRSW'x273\ORD.98MMASSAGE.APL 17 (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 (10) days after senrice 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 (10) day period, no further notice is required and the application will remain denied. (2) In order to hear and decide appeals of denims 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 said 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 f~x 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 30 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. (4) Failure of an applicant to file an appeal in accordance with the provisions set forth herein shall constitute a waiver of the right to an administrative hearing and adjudication of the notice and order or any F:\WPDXMI'CP, SWX273\ORD.98MMASSAGE.APL 18 portion thereof. (5) At the heating both the appellant and the City shall have the fight 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 (10) 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 marl, return receipt requested. The decision of the Board shall be final. 4-55.090 Permits non-transferable. 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. 100 Inspection by officials. Any and all investigating officials of the City shall have the tight to enter massage establishments from time to time during regular business hours to make reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing, or health regulations, and to ascertain whether the provisions of this Article are being complied with. 4-55.110. Operating requirements for massage establishments. Unless otherwise specified herein, all establishments shall comply with the following operating requirements: (a) Exterior signs. A recognizable and legible sign shall be posted at the main entrance identifying the business as a massage establishment. In addition, the sign shall comply with the City sign ordinance. F:\WPDMMNRSWX273\ORD.98MMASSAGE.APL 19 (b) Posting of massage establishment permit, managing employee permit, and massage practitioner permit. A copy of the massage establishment pern~it, managing employee permit(s), and massage practitioner permit(s), shall be posted in a conspicuous place in such a manner that it can easily be seen by persons entering the establishment. Passport-size photographs shall be affixed to the respective managing employee permit(s) and massage practitioner permit(s) on display; (c) Designation of managing employee. If the holder of the massage establishment permit does not personally manage the business during all hours of operation, he/she shall designate one or more managing employee(s) who shall be in charge of the operation of the business during his/her absence. If the managing employee(s) will personally give massages at the business, he/she must obtain a massage practitioner permit; (d) Doors to be unlocked. All doors, except rest room doors, will be ' kept unlocked at all times during business hours. Doors to all dressing and massage rooms shall be kept unlocked at all times. There shall be no locking devices on the doors to rooms in which massages are performed; (e) Posting of services available and fees. A list of all services available, the price thereof and the length of time each segdce shall be performed, shall be posted or available in a conspicuous place in such a manner that it can easily be seen by persons entering the establishment. No other services, other than those posted, will be provided; (f) Payment/tips. Payment for massage services, and any tips, shall be paid for, at the designated reception area, of the business establishment; (g) Alcohol prohibited. No alcoholic beverages may be located on the premises of the massage establishment while the business is open for the practice of massage; (h) Maintain written records. Every massage establishment shall maintain written records which include the date and hour of each service provided, the full legal name and.street address of each client and type of. services received, and the name of the massage practitioner administering the service. These records shall be kept on the business premises and shall be open to inspection by officials upon request, including the Sheriff, City Manager and City Attorney, charged with the enforcement of this Article. These records will be kept for a period of at least six (6) F:\WPDWINRSW~273\ORD.98MMASSAGE.APL 2 0 months; (i) Standard of dress for massage establishment employees. The holder of the massage establishment permit, managing employees, massage practitioners, and all other employees of the massage establishment shall remain fully clothed in dean outer garments while on the premises on the massage establishment. At a minimum such clothing shall be made of nontransparent material and shall not expose the buttocks, genital area, or breasts of any employee or permit holder at any time. Bikini swimsuits and halter tops shall not be accepted; (j) Operating hours. No massage establishment shall be kept open for business and no massage practitioner shall administer massages after the hour of I0:00 p.m. or before the hour of 7:00 a.m. Operating hours may be further restricted by the City Manager pursuant to Section 4-S5.080(c); (k) Mirrors prohibited. In general, mirrors are prohibited in rooms where massages are performed; however, one full length or small mirror may be mounted vertically to the wall, not less than twenty (20") inches from the floor; (1) Lighting required. Massage establishments will be well lighted at all times during business hours. Rooms where massage services are provided will be adequately lighted when occupied. 4-55.120 Massage establishment sanitary conditions. All premises and facilities of the massage establishment shall be maintained in a clean and sanitary condition and shall be thoroughly cleaned after each day of operation. The premises and facilities shall meet applicable code requirements of the City, including but not limited to those related to the safety of structures, adequacy of the plumbing, heating, ventilation, and waterproofing of rooms in which showers, water, or steam baths are used. All massage establishments shall comply with the following requirements: (a). _. Tub, .Shower, Toilet, Wash Basin.. A minimum-of one tub or shower, and one toilet and wash basin shall be provided. (b ) Cabinets. Cabinets or other covered space shall be provided for the storage of dean linen. Approved receptacles shall be provided for the storage of F:\WPDMMNRSW~273\ORD.98WIASSAGE.APL ~2 1 all soiled linen and paper towels. (c) Lavatories, Wash Basins. All lavatories or wash basins shall be provided with hot and cold running water, soap and single senrice towels in wall- mounted dispensers. (d) Security Deposit Facilities. Security deposit facilities capable of being locked by the patron or a security bag that may be carried by the patrol shall be available for the protection of the valuables of patrons. (e) Sanitary Condition. Every portion of a massage establishment, including appliances and apparatus, shall be kept clean and operative in a sanitary condition. (f) Clean Towels, Sheets and Linens. 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) Physical Facilities In Good Repair. All wails, 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. 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, Washable. Pads used on massage tables shall be covered with durable, washable plastics or other acceptable waterproof material. (j) Privacy Standards for Massage Rooms, Dressing Rooms and Rest Rooms. Dressing rooms and rests rooms may only.be-used by. clients of the same sex at the same time. The massage establishment shall provide doors for all dressing rooms, rest rooms, and massage rooms. Draw drapes, Curtain enclosures, or accordion-pleated enclosures are acceptable in lieu of doors for dressing rooms and massage rooms. F:\WPDMMNRSW~.73\ORD.98MVIASSAGE.APL 22 Massage services shall not be given or made available to patrons at hot tub/sauna or tanning establishments, unless the establishment has obtained and maintained in effect a massage establishment permit for the hot tub/sauna, or tanning establishment. Hot tub/sauna or tanning establishments which offer massage services must comply with all provisions of this Article. Massages shall not be given in any rooms or areas in which 'a hot tub, sauna, shower, or ]acuzzi is located, or in wet and dry heating rooms, tanning rooms, steam or vapor rooms, or cabinets, or bathrooms. All employees of the hot tub/sauna or tanning establishment who engage in the practice of massage must first obtain and maintain in effect a massage practitioner permit pursuant to this Article. 4-55.140 Notice of employees' status. Every person holding a massage establishment permit issued pursuant to this Article shall report immediately in writing to the City Manager the employment or termination of massage practitioners and/or managing employees practicing in such establishment. 4-55. 150 Suspension and revocation of permits. (a) Suspension and revocation of massage establishment permit, managing employee permit or massage practitioner permit. The City Manager may suspend for a period of up to one year, modify or revoke a permit(s) if there is reasonable cause to believe that: ( 1 ) The permit holder has operated or managed the massage establishment or provided services in a manner which violates any provision of this Article, state law, federal law, or other applicable City Code provisions; (2) The permit holder has committed any offense involving lewdness, indecent exposure, prostitution, or any other offense which would be grounds for denial of. an. application,. or employees of the establishment have committed such offenses in the course of their employment and the permit holder has permitted them to do so, or failed to prevent them from doing so. The employer shall be responsible for those acts of its employees and massage practitioner which are done F:\WPDMVFNRSWX273\ORD.98~vlASSAGE.APL 23 in the course and scope of their employment; (3) The permit holder made a materially false or misleading statement, or omission of fact on any application, or in any supplementary materials submitted; (4) The permit holder is operating or managing the establishment, or providing services in a manner which poses a danger to the health and safety of employees, clients, and/or the public, or without due regard for proper sanitation or hygiene; (5) Any violation of this Article or state law by any person has occurred on the premises, and has not been prevented by the managing employee thereof; (6) In the case of a permit issued subject to conditions that any person making use of such permit is violating or has violated any conditions set forth therein; or (7) 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 (8) That any of the findings required under subsection 4- 55,080 can no longer be made. (b) Procedure for suspension or revocation of massage establishment permit, managing employee permit or massage practitioner permit. ( 1 ) Whenever the City Manager has reasonable cause to believe that grounds for the suspension or revocation of a permit exists, he/she shall give the holder of the permit written notice stating the alleged grounds for the suspension or revocation and the effective date of the suspension or revocation. This notice will be by. certified mail, return receipt requested, and/or hand delivered to the managing employee, and shall provide the permit holder with information on the appeal process. F:\WPDXIvlNRSVfi273\ORD.98XMASSAGE.APL 24 (2) A revocation, modification or suspension of a permit may be appealed in accordance with the provisions of Section 4-55.080. Upon receipt of a request for an appeal heating, the City Manager shall notify the permit holder in writing of the date, time, and place of the heating. At the heating, the holder of the permit 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, as stated in the written request for an appeal hearing. (3) Upon a written decision of the Appeals Board which suspends or revokes a permit the holder of the permit shall surrender the permit to the City Manager immediately after service of the notice of the written decision. (4) In lieu of revocation of a permit, if the Appeals Board finds that any of the conditions in subsection (a) paragraphs (6) - (8) exist, the Board may modify any existing conditions of the permit and impose any new conditions it deems necessary or appropriate to correct the situation. 4-55.160 Prohibited acts. (a) Touching of sexual and genital parts of client during massage. No holder of a massage establishment permit, managing employee permit, massage practitioner permit, temporary massage practitioner or any other employee of a massage establishment shall place either his/her hand or hands upon, or touch with any part of his/her body, or with a mechanical device, a sexual or genital part of any other person in the course of a massage, or massage a sexual or genital part of any other person. Sexual and genital parts shall include the genitals, pubic area, anus, or perineum of any person. (b) Uncovering and exposure of sexual and genital parts of client before, during or after massage. No holder of a massage establishment permit, managing employee permit, massage practitioner.permit or.any other. employee of a massage establishment shall uncover and expose the sexual or genital parts of a client or themselves while engaged in the practice of massage, or before or after a massage. This subsection does not prohibit a client from turning over in the course of a massage, so long as the massage practitioner holds a towel, sheet, blanket, or other F:\WPDXMNRSWX273\ORD.98MVzASSAGE.APL 25 drape over the client to protect his/her genital and sexual parts from exposure. If the client exposes genital area, the practitioner shall immediately direct the client to re- cover him/herself. If the client refuses to comply, the massage practitioner shall inform the client that no further massage will be provided and the client will be asked to leave the premises. If the client refuses to leave the premises, the massage practitioner must immediately leave the room and notify the managing employee. (c) Outcall massage services. It shall be unlawful for any massage establishment permittee or massage practitioner to provide outcall massage services within the City unless it occurs at the client's residence, and the client possesses a referral from a licensed chiropractor or physician stating that treatment in a licensed massage establishment is not recommended and the medical reason why it is not recommended, or at a business establishment in which clients shall be owners and employees of the business and the massage treatment consists of a "business massage" as defined in Section 4-55.020(a). A record of every such referral shall be obtained and kept by the person rendering the service for a period of one year from the date of referral. Such record shall show the full legal name and street address of the doctor or chiropractor, the date, and any prescription number. Massage practitioners providing outcall massage also comply with all other relevant provisions of this Article. 4-55.170 Application of this Article to preexisting massage establishments and persons engaged in the practice of massage. Except as otherwise provided herein, the provisions of this chapter shall become applicable to massage establishments and persons engaged in the practice of massage which lawfully existed in the City prior to the effective date of this Article. In order to comply with this Article, the holder of an existing permit must apply at least sixty (60) days prior to the expiration of that permit for a new permit, pursuant to this Article, pay all applicable fees and demonstrate, to the satisfaction of the City Manager, that he/she meets all requirements of this Article. 4-55.180 Violations of Article; penalties. The violation of any provision of this Article, or the violation of any condition of a permit 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 F:\WPDMMNRSWX273\ORD.98XMASSAGE.APL 26 under S~ction 4-55.150 to suspend or revoke a permit or any proceedings conducted under Article 4-05 of this Chapter to revoke a business license by reason of the sarnc violation. This Ordinance shall be in full force and effect thirty (30) days after its passage and adoption. The above and foregoing Ordinance was regularly intro&med and after the waiting time required by law, was thereafter passed and adopted at a regular meeting of d~e City Coundl of Saratoga held on the~Sth day of February , 1998, by the following vote. AYES: Councilmembers Jacobs, Moran, Shaw, and Mayor Wolfe NOES: None ABSENT: Counci] member Bogosi an ATTEST: City Clerk MSR:&p Key: February 12, 1998 J:\WPDWINKSWX273\OF, D.98WIASSAGli. APL