HomeMy WebLinkAboutOrdinances_2772_CCv0001.pdf ORDINANCE NO. 2772
AN ORDINANCE OF THE CITY OF REDLANDS AMENDING CHAPTER 5.28 OF THE
REDLANDS MUNICIPAL CODE REGULATING MASSAGE ESTABLISHMENTS WITHIN
THE CITY OF REDLANDS
WHEREAS,the City currently regulates the practice of massage and the operation of
massage establishments for the benefit of the public health, safety and welfare; and
WHEREAS, Business and Professions Code section 4600 et seq. (enacted by SB 731 in
2008 and amended by AB 619 in 2011) created a statewide permitting system administered by
the California Massage Therapy Council for issuing massage worker permits,thereby
preempting local permitting systems and requirements; and
WHEREAS, the Business and Profession Code continues to allow certain local regulation
of massage establishments and, to enable the City to carry out such local regulation and review
of massage establishments found in Business and Professions Code section 4600 et seq., the City
must amend its massage establishment regulations;
The City Council of the City of Redlands does ordain as follows:
Section 1. Chapter 5.28 of the Redlands Municipal Code, entitled"Massage
Establishments,"is hereby deleted in its entirety and rewritten to read as follows:
"Chapter 5.28 MASSAGE ESTABLISHMENTS
5.28.010: Declaration of Purpose and Intent.
5.28.020: Definitions.
5.28.030: Administration.
5.28.040: Certifications Required.
5.28.050: Massage Establishment Owner Background Check Required.
5.28.060: Additional Requirements.
5.28.070: Display of Permit.
5.28.080: Massage Establishment—Massage Technician Certificates Required.
5.28.090: Prohibited Conduct.
5.28.100: Facilities and Operations.
5.28.110: Exceptions.
5.28.120: Public Nuisance Abatement.
5.28.130: Revocation.
5.28.140: Civil Penalties.
5.28.150: Appeal.
5.28.160 Violation.
C:\Documents and Settinesirwin'Local Settings\Tempotary Internet Files'NOLK337\2772(New)Amending 5 28 Massage Establishments.doe
1
5.28.010: Purpose and Intent.
A. This chapter establishes new permitting standards intended to comply with
California law and establish health and safety guidelines for massage establishments.
B. This chapter is not intended to be exclusive and compliance will not
excuse noncompliance with any state or local laws or regulations that are uniformly applied to
other professional or personal services businesses including, without limitation, all zoning
applications;business license regulations;building, fire, electrical, and plumbing codes; and
health and safety code laws and regulations applicable to professional or personal services
businesses.
C. This chapter establishes a local regulatory system that allows only state
certified massage therapists and massage practitioners to operate within the City. This chapter is
also intended to allow a transitional period for certain existing massage practitioners to continue
practicing while they obtain state certification before December 31, 2013, and to coordinate the
timing of the City's business license renewal with the state massage certification process.
5.28.020: Definitions. Unless the contrary is stated or clearly appears from the
context, the following definitions govern the construction of the words and phrases used in this
chapter. Words and phrases not defined by this chapter have the meaning set forth elsewhere in
this Code, the Business and Professions Code, or the Government Code.
A. "California Massage Therapy Council (CAMTC)"means the California
Massage Therapy Council created pursuant to Business and Professions Code section 4500.5(a).
B. "Certified Massage Practitioner"means a person who is currently certified
as a massage practitioner by the CAMTC, and who administers massage for compensation.
C. "Certified Massage Therapist"means a person who is currently certified
as a massage therapist by the CAMTC, and who administers massage for compensation.
D. "Chief'means the City's Chief of Police, or his or her designee, or such
other City Director designated by the City Manager.
E. "City"means the City of Redlands.
F. "Massage"means any method of pressure on,or friction against, or
stroking, kneading,rubbing,tapping,pounding, vibrating or stimulating the external parts of the
human body with the hands or with the aid of any mechanical or electrical apparatus,or other
appliance or devices, with or without such supplementary aids such as rubbing alcohol,liniment,
antiseptic,oil,powder, cream, lotion, ointment or other similar preparations.
G. "Massage Establishment"means and includes any massage establishment,
parlor, or any room,place or institution where massage is given or administered by a massage
technician as the primary service of the business establishment.
C'Documents and Settin&sirwm\Loca1 Settings\Temporary Internet Files\OLK33712772(New)Amending 5 28 Massage Estabhshments,doc
2
H. "Massage Technician"means any person, who gives,performs or
administers to another person a massage for any form of consideration.
I. "Person"means and includes persons, firms, corporations,partnerships,
associations or other forms of business organization or group.
J. "Specified anatomical areas"means and includes any of the following
human anatomical areas: genitals,pubic regions, anuses or female breasts below a point
immediately above the top of the areola.
K. "Specified sexual activities"means and includes all of the following:
I. Fondling or other erotic touching of specified anatomical areas;
2. Sex acts including,without limitation, intercourse, oral copulation,
or sodomy;
3. Masturbation; or
4. Excretory functions as part of or in connection with any specified
sexual activity listed in this definition.
5.28.030: Administration: The Chief is authorized to administer this chapter and to
promulgate administrative policies and procedures required to implement the regulations set
forth in this chapter.
5.28.040: Certifications Required:
A. Massage Establishment. It is unlawful for any person to own, operate or
maintain a massage establishment unless all massage technicians employed by the massage
establishment hold a current, valid certification from CAMTC as a massage practitioner or
massage therapist.
B. Massage Technician. It is unlawful for any person to engage in,or carry
on the business or activities of a massage technician without a certification from the CAMTC as
a massage practitioner or massage therapist.
C. Off-premises,massage service. It is unlawful for any person to own,
operate, or maintain an off-premise massage service in the city unless all massage technicians
employed by the off-premises massage service hold a current, valid certification from the
CAMTC as a certified massage practitioner or certified massage therapist.
5.28.050: Massage Establishment Owner Background Check Required.
CkDocuments and Settings\sfiwi&,Loca1 Settings\Temporury Internet Files\OLK337,2772(New)Amending 5 28 Massage Establishments.doc
3
A. Except for massage establishment owners who possess a current and valid
CAMTC certification, any person, association, partnership, or corporation who owns more than
five percent(5%) of a massage establishment and desires to operate that massage establishment
must make an application to the Chief for an investigation of the applicant's background and
history. A nonrefundable fee, in an amount set by resolution of the City Council,must
accompany the submission of each application to defray the cost of investigation,inspection and
enforcement of this chapter. An annual nonrefundable renewal fee will also be charged to defray
associated costs of investigation, inspection and enforcement.
B. Each applicant for background check must submit the following
information.
I The full true name and any other names used by the applicant.
2. The present address and telephone number of the applicant.
3. Driver's license number and social security number.
4. The proposed address of the massage establishment.
5. Each residence and business address of the applicant for the three
years immediately preceding the date of the application, and the inclusive dates for such address.
6. Written proof that the applicant is at least 18 years of age.
7. Applicant's height, weight, and color of eyes and hair.
8. Two photographs of the applicant at least two inches by two inches
taken within four months preceding the date of the application.
9. Applicant's business, occupation and employment history for the
five years immediately preceding the date of application.
10. The business license or permit history of the applicant, including
whether such applicant has ever had any license or permit issued by any agency or board, city,
county or state revoked or suspended, or has had any professional or vocational license or permit
revoked or suspended and the reasons for the revocation.
11. All criminal convictions for any of the offenses set forth in this
chapter, and a statement of the dates and places of such convictions.
12. If the applicant is a corporation,the name of the corporation must
be set forth exactly as shown in the articles of incorporation or charter, together with the state
and date of incorporation and names and residence addresses of each of its current officers and
directors,and each stockholder holding more than five percent of the stock of the corporation. If
the applicant is a partnership,the application must set forth the names and residence addresses of
C.'Documents and Settingsirwin\Local SettingsJemporary Internet Files\OLK33712772(New)Amending 5 28 Massage Establishments.doc
4
each of the partners,including the limited partners. If the applicant is a limited partnership, it
must furnish a copy of its certificate of limited partnership filed with the county clerk. If one or
more partners is a corporation,the provisions of this section pertaining to corporate applicants
may apply. The applicant corporation or partnership must designate one of its officers or general
partners to act as its responsible managing officer. Such person must complete and sign all
application forms required of any individual applicant under this chapter,but only one
application fee will be charged.
13. The name and address of the owner and lessor of the real property
upon or in which the massage establishment is to be operated, and a copy of the lease or rental
agreement. If the applicant is not the legal owner of the property, a notarized acknowledgement
from the owner of the property that a massage establishment will be located on his or her
property is required for each massage establishment permit location.
14. The full true names and other names used, the present addresses
and telephone numbers, driver's license numbers, and social security numbers, and state
certificates from the CAMTC or transitional licenses for all massage technicians who will be
working as employees or independent contractors at each massage establishment permit location.
The applicant must provide the Chief with any changes in the massage technicians that work at
the massage establishment during the permit period within 10 working days of each change.
15. The Chief may require the applicant to furnish fingerprints when
needed for the purpose of verifying identification.
16. Such other identification and information as may be required by
the Chief in order to verify the information to be included in the application.
C. The city is allowed a reasonable time, not to exceed 60 days,in which to
investigate the information on the application. During the investigation of the background
information, a city representative including, without limitation, a member of the Police
Department, Fire Department, Building and Safety Division, Planning Division,or any
authorized representative thereof,may inspect, with or without the notice during regular business
hours, the proposed place of business to determine whether it conforms to the requirements of
this chapter. Upon completion of the inspection, the city representative must inform the Chief in
writing of the findings of the inspection.
I. Background clearance will be issued, within 60 days of receipt of
the application,to any applicant who has furnished all of the information required by this section
in the application for such license, provided:
a. The applicant has not made a material false statement in the
application and that all massage technicians who will be working as
employees or independent contractors at each massage establishment permit
location possesses certification from the CANITC as a massage practitioner or
massage therapist.
C'Documents and ScttingsksirwinMvocal Settings Temporary Internet Files\OLK337\2772(New)Amending 5 28 Massage Establishments,doc
5
b. The applicant, if an individual, or in the case of an applicant
which is a corporation or partnership, any of its officers, directors,holders or
five percent or more of the corporation's stock, has not, within five years
immediately preceding the date of the filing of the application been convicted
in a court of competent jurisdiction of any of the following offenses: Penal
Code sections 243.4; 261; 266a through 266j; 267; 314 to 316; 318; or 647 (a,
b, d); any offenses requiring registration wider Penal Code section 290 or
Health and Safety Code section 11590; or any felony offense involving the
possession, possession for sale, sale, transportation, ftu-nishing, or giving away
of a controlled substance specified in Health and Safety Code sections 11054
to 11058, as amended; or any offense in another state in which,if committed
in California, would have been punishable as one or more of heretofore
mentioned offenses; or any offense involving the use of force or violence
upon the person of another; or any offense involving theft, embezzlement or
moral turpitude;
C. The applicant is at least 18 years of age; and
d. The applicant has not had a massage technician,massage
establishment, escort service,nude entertainment, nude photo studio or similar
type of license or permit suspended within one year or revoked within three
years immediately preceding the date of the filing of the application,unless
the applicant can show a material change in circumstances or that mitigating
circumstances exist since the revocation or suspension.
5.28.060: Additional Requirements. Before operating a massage establishment in the
city,massage establishment owners must comply with all applicable codes adopted by the city,
including, without limitation,the building, electrical, and plumbing codes.
5.28.070: Display of Permit. Any owner of a massage establishment or off-premise
massage service must display the CAMTC certificates for all massage technicians prominently in
a conspicuous place, capable of being viewed by customers or city representatives, at every
location where massage is performed or conducted. For off-premise massage services,massage
workers must also carry a copy of their CAMTC certificate and display it to customers upon
request.
5.28.080: Massage Technician Certificates Required. It is unlawful for owners of
massage establishments or off-site massage services to allow any person to perform massage that
is not a certified massage therapist or certified massage practitioner.
5.28.090: Prohibited Conduct. It is unlawful for owners of massage establishments
or off-premise massage services, or massage technicians to conduct or allow any of the following
activities:
A. It is unlawful for any massage technician or any other employee working
in a massage establishment or for an off-premise massage service, or customers,patrons, or
C"Documents and Settings\sirwielocal Settings\Temporary Internet Fi1es'xoLK337\'.1772(New)Amending 5 28 Massage Establislunents.doc
6
guests of the establishment or service, to engage in any specified sexual activities upon the
premises of the massage establishment or the off-premise massage location.
B. It is unlawful for any massage technician or other employee of a massage
establishment to expose specified anatomical areas in the presence of any patron, customer or
guest.
C. In the course of administering the massage, it is unlawful for any massage
technician or other massage establishment employee to make intentional physical contact with
the specified anatomical areas of any customer,patron or guest.
5.28.100: Facilities and Operations. It is unlawful for any massage establishment to
operate unless the massage establishment premises and operation comply with following
minimum requirements:
A. Signs. A readable sign must be posted at the main entrance identifying the
establishment as a massage establishment,provided,however, that all such signs must otherwise
comply with the sign requirements of this code.
B. Lighting. Minimal lighting must be provided in accordance with the
California Building Code, as adopted by this code, and, in addition, at least one unobstructed
artificial light of not less than nine hundred(900)lumens must be provided in each enclosed
room or booth where massage services are being performed on a patron.
C. Ventilation. Minimum ventilation must be provided in accordance with the
California Building Code, as adopted by this Code.
D. Disinfection of Instruments. Instruments used for massage must be
disinfected before each use. Where instruments for massage are employed, adequate quantities of
supplies for disinfection must be available during all hours of operation.
E. Water. Hot and cold running water must be provided at all times.
F. Linen Storage. Closed cabinets must be utilized for the storage of clean
towels and linen. After use,towels and linen must be removed and stored in a separate container
until laundered.
G. Dressing and Toilet Facilities. For massage establishments consisting of
1500 square feet or more, or having more than 4 employees, separate dressing and toilet facilities
must be provided for male and female patrons. This condition does not apply to massage
establishment that offer foot massage services and provide other form of massage services or
other type of activity regulated by this chapter.
H. Sanitary Conditions. All walls, ceilings, floors, steam and vapor rooms,
and all other physical facilities for the massage establishment must be kept in good repair and be
maintained in a clew and sanitary condition.
CDocuments and Sdtings\snwin\Loca1 Settinp\Tempmary Internet Files\OLK33712772(New)Amending 5 28 Massage Fstablishments.doe
7
I. Clean Linen. Clean and sanitary towels and linens must be provided for
patrons receiving massage services. No common use of towels or linens is permitted.
J. Compliance with Laws. The premises to be used must at all times comply
with all applicable state and local laws and regulations.
K. Any room in which a massage establishment provides massage services
may not be used for residential sleeping purposes.
L. A register of all individuals employed as massage technicians, and copies
of their current CAMTC certifications and massage technician business licenses,must be
maintained and available for inspection at all times during regular business hours.
M. Each person present in any area of the massage establishment outside the
waiting area or other areas open to any member of the public must be a certified massage
practitioner or certified massage therapist or the massage establishment owner.
N. The permits and certifications required by this chapter must be displayed
in an open and conspicuous public place on the premises.
5.28.110: Exceptions. This chapter does not apply to the following classes of
individuals, and no CAMTC certification is required of such persons, while engaged in the
performance of the duties of their respective professions:
A. Acupuncturists who are duly certified to practice their profession in the
state of California.
B. Barbers,beauticians, and cosmetologists with respect to scalp massage,
who are duly pen-nitted pursuant to Business and Professions Code section 7301 et seq., in
accordance with the limitations of their permits.
C. Nurses who are registered as such under the laws of the state of California.
D. Physicians, surgeons, chiropractors, osteopaths, or physical therapists who
are duly permitted to practice their respective professions in the state of California, or provide
professional services in lawful compliance with Corporations Code section 13401{a).
5.28.120: Public Nuisance Abatement. Any massage establishment operated,
conducted or maintained contrary to the provisions of this chapter is unlawful and a public
nuisance. The City Attorney is authorized, in addition to or in lieu of any other legal or criminal
proceedings,to commence an action or proceeding for abatement,removal or enjoinment of such
massage establishment in the manner provided by law. The City Attorney may seek a court order
to grant such relief to abate or remove such massage establishments and restrain and enjoin any
person from operating, conducting or maintaining such an establishment contrary to the
provisions of this chapter.
C:\Documems and Settings\sirwitixLocal Setting\Temporaty Internet Ffles`\OLK33T2772(New)Amending 5 28 Massage Establishments.doe
8
5.28.130: Revocation. Grounds for Revocation. The Chief may revoke any approval
issued under this chapter for one or more of the following grounds:
A. Fraud or Deceit. That the applicant practiced fraud or deceit in obtaining
an approval under this chapter;
B. Violation of Chapter. That the massage establishment owner, operator,
massage technician,or its employee violated a provision or provisions of this chapter;
C. Criminal Conviction. That the massage establishment owner, operator,
massage technician,or its employee has been convicted in a court of competent jurisdiction of
any offense described in this chapter;
D. Improperly Maintained Facilities. That the facilities and operations of the
massage establishment are not kept in compliance with this chapter, and that the owner or
operator has failed to promptly remedy deficiency of which they have been notified. For
purposes of this subsection, "notice"means notice given personally or by leaving notice at the
massage establishment premises, or by first class mail, postage prepaid, to the address designated
by the massage technician or establishment in accordance with this chapter;
E. Employment of Uncertified Technicians. That the massage establishment
has employed, allowed or permitted an uncertified person to perform massage in the massage
establishment;
F. Error. That the approval was issued in error.
G. Civil Penalties. Assessment of three or more civil penalties as provided by
this chapter during the any six month period; or
H. Prohibited Conduct. A massage establishment owner, operator,massage
technician,or its employee or agent has been found to have engaged in prohibited conduct in
violation of this chapter.
Upon a determination on the grounds to revoke an approval under this chapter,the Chief must
cause a notice of revocation to be mailed by first class,postage prepaid mail,to the address
designated by the massage technician or establishment pursuant to this chapter.
5.28.140: Civil Liability and Penalties.
A. Any person violating any provision of this chapter is liable in a civil action
brought by the City Attorney of an amount up to $500 per violation. Such person is also liable
for reasonable attorneys' fees and costs incurred by the City Attorney in any civil proceeding
filed to enforce this chapter.
C'Documents and Settings\sirwin),Local Settings\Tempomry Intemet Files10LK33T,2772(New)Amending 5 28 Masmge a-tablishments,doc
9
B. Enforcing this chapter through civil action may be filed as an alternative to
criminal enforcement. Civil enforcement does not require the violation to be knowing or willful.
A civil action cannot be filed if the person is being criminally prosecuted.
C. Each violation of this chapter is a separate offense subject to the civil
penalty.
D. The City Attorney may settle any civil enforcement before or after to the
filing of a civil action by imposing a civil penalty in an amount not exceeding the potential civil
liability, including attorneys' fees set forth in this section. If such civil penalty is paid in full, the
City Attorney can agree not to file civil or criminal actions or, if action has already been filed,
may dismiss such action. Imposition of all civil penalties is public record.
E. All civil fines must be deposited into the general fund.
5.28.150: Appeal. Any person denied an approval under this chapter or a massage
establishment owner or operator whose approval has been revoked may appeal the denial or
revocation in writing pursuant to the appeal procedures provided in by chapter 1.09 of this code.
Such appeal must be in writing an must be filed with the City Clerk not more than fifteen (15)
days following the Chief's deposit into the mail of the notice of denial or revocation sent to the
applicant or massage establishment owner or operator to the address listed by the applicant or
massage establishment owner or operator pursuant to this chapter. Any successful appeal will
result in approval or reinstatement of an approval and refund of any fines collected by the City.
5.28.160 Violation. In addition to any other penalties provided for in this chapter,
any person who violates, or causes or permits the violation of, any provision of this chapter shall
be deemed guilty of a misdemeanor, or at the discretion of the City Attorney, may be deemed
guilty of an infraction, as the interests of justice warrant."
Section 2: This ordinance is exempt from review under the California Environmental
Quality Act(California Public Resources Code section 21000 et seq., "CEQA") and the State CEQA
Guidelines(14 California Code of Regulations section 15000 et seq.)because it establishes rules and
procedures to permit operation of existing facilities; consists only of minor revisions and
clarifications to existing regulations and specification of procedures related thereto; and consists of
actions taken to assure the maintenance,protection and enhancement of the environment. This
ordinance,therefore, does not have the potential to cause significant effects on the environment.
Consequently,it is categorically exempt from further CEQA review under State CEQA Guidelines
sections 15301, 15305 and 15308.
Section 3. If any part of this ordinance or its application is deemed invalid by a court of
Competent jurisdiction, the City Council intends that such invalidity will not affect the effectiveness
of the remaining provisions or applications and,to this end,the provisions of this ordinance are
severable.
Section 4. The Mayor shall sign this ordinance and the City Clerk shall certify to the
adoption of this ordinance and shall cause it, or a summary of it,to be published once in the
C\Etm-umcnts and Settin0sirwitikLocal SettingsJempotaty Internet FiIes\OLK33T2772(New)Amending 5 28 Massage Establisimients.doc
10
Redlands Daily Facts, a newspaper of general circulation within the City, and thereafter, this
ordinance shall take effect as provided by law.
}
Pete Aguilar, Mayor
ATTEST:
f
Sam Irwin, i Clerk
I, Sam Irwin, City Clerk of the City of Redlands,hereby certify that the forering ordinance was
duly adopted by the City Council at a regular meeting thereof held on the 16 day of October,
2012.
AYES: Councilmembers Foster, Harrison, Bean, Gardner, and Mayor Aguilar
NOES: None
ABSENT: None
ABSTAINED: None
Sam Irwin, City Clerk
I eclerk\0rdmancesi2772(New)Amending 5.28 Massage Establishments.doc
II