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HomeMy WebLinkAbout94-54 - Amending Chapter 5.50 of the Newport Beach Municipal Code Pertaining to Massage Establishments• • NO. 94 -54 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING CHAPTER 5.50 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO MASSAGE ESTABLISHMENTS. The City Council of the City of Newport Beach does hereby ordain as follows: SECTION 1: Chapter 5.50 of the Newport Beach Municipal Code is amended to read as follows: CHAPTER 5.50 MASSAGE ESTABLISHMENTS Sections: 5.50.010 Definitions. 5.50.015 Operator's Permit Required. 5.50.020 Application For Operator's Permit. 5.50.025 Operator's Permit Issuance And Denial. 5.50.030 Massage Technician Permit. 5.50.035 Application For Massage Technician Permit. 5.50.040 Massage Technician Permit Issuance And Denial. 5.50.045 Off - Premises Massage Permit. 5.50.050 Requirements of Operation. 5.50.055 Changes Of Business. 5.50.060 Fees. 5.50.065 Exemption; Existing Permittees. 5.50.070 Transfer And Duration Of Permits. 5.50.075 Suspension, Revocation, Denial And Appeal. 5.50.080 Violation And Penalty. 5.50.085 Severability. 5.50.010 Definitions. A. "Chief of Police." The Chief of Police of the City of Newport Beach, or his /her designated representative. B. "City Manager." The City Manager of the City of Newport Beach, or his /her designated representative. C. "City Council." The City Council of the City of Newport Beach. D. "Conviction ", "Convicted." A plea or verdict of guilty or a conviction following a plea of nolo contendere. E. "Health Department." The Health Care Agency of the County of Orange the services of which are performed pursuant to contract with the City of Newport Beach. F. "Holistic Health Massage Establishment." A massage establishment in which all persons engaging in activities which require them to obtain a permit under this Chapter have obtained valid permits as holistic health practitioners. G. "Holistic Health Practitioner." A non - medical health care therapist who uses a massage specialty and therapeutic approach and caring for clients; who: (1) Is a member in good standing in a state or • nationally chartered organization devoted to a massage specialty approach, and has passed the national certification examination; and (2) Has completed either of the following requirements: (a) 500 hours of instruction in a massage specialty in a recognized school, with a state approved curriculum; or, in the alternative, (b) 300 hours of such instruction and in addition, 500 hours of practical experience in the massage specialty and therapeutic approach in the form of paid employment in the primary office of and under the direct supervision of a medical professional licensed by the State of California, specifically a physician, surgeon, chiropractor, osteopath, physical therapist or nurse, while such medical professional is performing activities encompassed by such license, and is physically on the premises where the massage therapy is being administered. H. "Manager." The person(s) designated by the operator of the massage establishment to act as representative and agent of the operator in managing day -to -day operations with same liabilities and responsibilities. I. "Massage." Any method of treating the external parts of the body for remedial, hygienic or any other reason or purpose, • whether by means of pressure, rubbing or other manner of touching external parts of the body with the hands, or with the aid of any mechanical or electrical apparatus with or without supplementary aids such as oils, powders, creams or other similar preparations. -2- J. "Massage Establishment." Any business conducted within the City of Newport Beach where any person, for money or any other consideration, administers to another person a massage. K. "Massage Technician." Any person who administers to another person a massage within a massage establishment or is in • training or apprenticeship to administer a massage. L. "Operator." 'All persons who have an ownership interest in the massage establishment. M. "Operator's Permit." The permit required pursuant to the provisions of this Chapter to operate a massage establishment. N. "Person." Any individual, or corporation, partnership, association or other group or combination of individuals acting as an entity. O. "Police Department." The Police Department of the City of Newport Beach. 5.50.015 Operator's Permit Required. No person shall operate a massage establishment within the • City without first obtaining an operator's permit pursuant to Sections 5.50.020 and 5.50.025 of this Chapter, securing the necessary business license as required by this Code, and complying with Title 20 of this Code. 5.50.020 Application For Operator's Permit. A. Any person desiring an operator's permit for massage establishment business shall file a written application on the required form with the Police Department Community Services Officer who shall conduct an investigation. The application shall be accompanied by the appropriate filing fee established by Resolution of the City Council. The application shall be completed and signed by the operator of the proposed massage establishment, if a sole proprietorship; one general partner, if the operator is a • partnership; one officer or one director, if the operator is a corporation; and one participant, if the operator is a joint venture. The application shall contain or be accompanied by the -3- following information: 1. The type of ownership of the business, i.e., whether by individual, partnership, corporation or otherwise. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation • or charter together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent (5%) of the stock of that corporation. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners. 2. The precise name under which the massage establishment is to be conducted. 3. The complete address and all telephone numbers of the massage establishment. 4. A complete list of the names and residence addresses of all proposed massage technicians and employees in the • massage establishment and the name and residence addresses of the manager or managing employee proposed to be principally in charge of the operation of the massage establishment. 5. A description of any other business operated on the same premises, or within the City of Newport Beach or the State of California which is owned or operated by the applicant. 6. The applicant: a. b. • Present C. eighteen d. following personal information concerning the Name and complete residence address. Two previous addresses immediately prior to the iddress of the applicant. Acceptable proof that the applicant is at least (18) years of age. Height, weight, color of hair, eyes and sex. e. Two (2) front faced portrait photographs at -4- • least two inches (211) by two inches (211) in size. f. The applicant's business, occupation and employment history for five (5) years preceding the date of application, including, but not limited to, the massage or similar business history and experience of the applicant. g. The permit history of the applicant; whether such person has ever had any permit or license issued by any agency, board, city, county, territory or state; the date of issuance of such a permit or license, whether the permit or license was denied, revoked or suspended; or if a vocational or professional license or permit was denied, revoked or suspended; and the reason therefor. h. All criminal convictions, excluding minor traffic violations, including date and place of each such conviction and reason therefor. i. A complete set of fingerprints taken by the Police Department. 7. The name and address of the owner and lessor of the real property upon or in which the business is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the property that a massage establishment will be located on his /her property. 8. Authorization for the City, its agents and employees to seek verification of the information contained in the application. 9. Such other information and identification as deemed • necessary by the Chief of Police. 10. A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct. B. Each operator and the operator's designated manager(s) -5- must pass a written test dealing with the requirements of this chapter to insure complete understanding of the operator's and manager's duties prior to the issuance of the operator's permit. This requirement shall apply to designated managers who are not otherwise tested and hold an operator or massage technician permit • under this Chapter. 5.50.025 Operator's Permit Issuance And Denial. A. Upon receipt of a written application for a permit, the Chief of Police shall conduct an investigation to ascertain whether such permit should be issued as requested. The Chief of Police shall, within forty -five (45) days of the filing of an application, approve, conditionally approve or deny the application. The forty - five (45) day period may be extended for up to thirty (30) additional days, if necessary to complete the investigation. The Chief of Police shall issue such permit as requested, unless he /she makes any of the following findings: 1. The applicant, if an individual, or any of the • officers or directors of the corporation, if the applicant is a corporation; or a partner, if the applicant is a partnership, or any person directly engaged or employed in the massage establishment, (a) has been convicted of a violation of California Penal Code Sections 266h, 2661, 314, 315, 316, 318, Subsections (a) , (b) and (g) of Penal Code Section 647 or 650.5, or any other provision of law pursuant to which a person is required to register under the provisions of Penal Code Section 290. (b) has been convicted of a violation of Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution or possession of a controlled • substance specified in Health and Safety Code Section 11054, 11055, 11056, 11057 or 11058. (c) has been convicted of any offense in any other state which is the equivalent of any of the above- mentioned offenses. (d) has been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Sections 11225 through 11235 of the California Penal Code, or any similar provisions of law in a jurisdiction outside the State of California. (e) has engaged in conduct which would constitute an offense as described in paragraph (a) of this subsection, within five (5) years immediately prior to the filing of any application. (f) has committed an act in another jurisdiction, which if committed in this state would have been a violation of law or, which, if done by a permittee under this Chapter, would be grounds for denial, suspension or revocation of the permit. (g) has been convicted of an act involving dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are related to the qualifications, functions or duties of the operator. • 2. The applicant has made a false, misleading or fraudulent statement of fact to the City in the permit application process. 3. The application does not contain all of the information required by Section 5.50.020. 4. The massage establishment as proposed by the applicant does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards. • 5. The applicant has not satisfied the requirements of this Chapter. 6. If the application is denied for failure to comply with Section 2 or 3 above, the applicant may not reapply for a period of 6 months from the date the application was denied. -7- B. All operators shall comply with the following conditions and any other conditions specified by the Chief of Police on issuance of the operator's permit: 1. Except to the extent required, in writing, by a state licensed medical practitioner, no massage technician, is massage technician aide or employee shall massage the genital or anal area of any patron or the breasts of any female patron, nor shall any operator of a massage establishment allow or permit such massage. No massage technician, massage technician aide or employee, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, anus, or, in the case of female, her breast (s) , are fully covered. 2. No person granted a permit pursuant to this Chapter shall use any name or conduct business under any designation not specified in his or her permit. • 3. All massage establishments required to be licensed under this Chapter shall have a manager on the premises at all times the massage establishment is open. The operator of each massage establishment shall file a statement with the Chief of Police designating the person or persons with power to act as a manager. The operator, or the manager in the operator's absence, shall be responsible for ensuring compliance with this Chapter. 4. The operator and designated manager(s) shall ensure the massage technician permit for each on -duty massage technician is displayed in a conspicuously public place and that each massage technician is wearing the identification • required by Section 5.50.040(B)(3). 5. No operator shall employ any person as a massage technician or massage technician aide, who does not have a valid massage technician permit issued pursuant to this Chapter. Every operator shall report to the Chief of Police any change of employees, whether by new or renewed employment, discharge or termination. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within five (5) days of the hire or termination. The operator shall deliver the permit and photo • identification card of any massage technician no longer employed by the operator to the Chief of Police. 6. All persons employed in the massage establishment shall be fully clothed at all times. Clothing shall be of a fully opaque, non - transparent material and provide complete covering from mid -thigh to three (3) inches below the collar bone. 7. Each operator shall provide the Chief of Police with evidence of the insurance required by Section 5.50.050 within forty -five (45) days of the date of issuance of the permit. 8. The operator shall comply with all provisions of this Chapter and any applicable provisions of the Newport • Beach Municipal Code. 5.50.030 Massage Technician Permit. No person shall perform or administer a massage, or advertise to provide massage services in the City of Newport Beach, unless such person has in effect a valid massage technician permit issued pursuant to Sections 5.50.035 and 5.50.040 of this Chapter. A massage technician, and any person in training or apprenticeship, shall comply with the requirements of Sections 5.50.035 and 5.50.040. 5.50.035 Application For Massage Technician Permit. A. Any person desiring a massage technician permit shall file a written application on the required form with the Police Department Community Services Officer who shall conduct an • investigation. The application shall be accompanied by the appropriate filing fee established by resolution of the City Council. The application shall contain the following information: a I . A statement of the exact location at which the applicant will be working as a massage technician, including the full street address and all telephone numbers associated with said location, and the name and address of the massage establishment. • 2. A statement, in writing, from a licensed physician in the State of California that he or she has examined the applicant within the past thirty (30) day period preceding said application and believes the applicant to be free from all communicable diseases. 3. The following personal information concerning the applicant: a. Name, complete residence address and telephone; b. Two (2) previous addresses immediately prior to the present address of the applicant; C. Acceptable written proof that the applicant is at least eighteen (18) years of age; • d. Height, weight, color of hair and eyes, and sex; e. Two (2) front faced portrait photographs at least two inches (2 ") by two inches (211) in size; f. The business, occupation and employment history of the applicant for the five (5) years immediately preceding the date of the application; g. The permit history of the applicant and whether such person has ever had any license or permit, issued by any agency, board, City, or other jurisdiction, denied, revoked or suspended and the reasons therefor. 4. All criminal convictions, excluding minor traffic violations, including date and place of each such conviction isand reason therefor. 5. A complete set of fingerprints taken by the Police Department. 6. Such other information and identification as deemed necessary by the Chief of Police. -10- 7. Authorization for the City, its agents and employees to seek verification of the information contained in the application. 8. A statement in writing, and dated, by the applicant that he or she certifies under penalty of perjury that all • information contained in the application is true and correct. B. Each applicant except an applicant who qualifies as a holistic health practitioner must furnish an original or certified copy of a diploma or certificate and certified transcript of graduation from an approved school wherein the method, profession, anatomical and physiological knowledge and practice of massage technician is taught. The term "approved school" means and includes any school or institution of learning licensed by the State of California and approved by the State Superintendent of Public Instruction pursuant to Education Code Section 94311D and reviewed by the Superintendent within the preceding twelve (12) month period which school has for its purpose teaching of the • theory, the method, profession or work of massage technicians and which school requires a resident course of study of not less than three hundred (300) hours. The applicant must also supply a course description, an outline of material covered, transcript and a letter to the City from the school administrator verifying completion. The Chief of Police may consider an applicant's study of massage completed outside the State of California if proof of completion from a formalized course of study in massage practice, anatomy, physiology is provided within application. Proof of completion shall include dates of study and the name, address and phone number of the school attended. Any outside course of study submitted for approval shall ismeet the State of California's Office of Post Secondary Education's minimum requirements. C. An applicant for a holistic health practitioner massage technician permit shall have passed the national certification -11- examination and shall present proof of membership in a state or nationally chartered organization devoted to the massage specialty and therapeutic approach and either: (1) Proof, as described in B. above, of completion of 500 hours of instruction in the massage specialty and • therapeutic approach at a recognized school of massage with a state approved curriculum; or in the alternative, (2) Proof, as described in B. above, of completion of 300 hours of instruction in the massage specialty or therapeutic approach and in addition, proof of completion of 500 hours of practical experience in the massage specialty and therapeutic approach in the form of paid employment in the primary office of and under the supervision of a medical profession licensed by the State of California, specifically a physician, chiropractor, osteopath, physical therapist, or nurse, while such medical professional is performing activities encompassed by such license and is physically on • the premises where the massage is being administered. Proof of practical experience may include, but is not limited to, W- 2 tax forms provided to the applicant and certified by the medical professional and signed, notarized narrative summaries of the applicants' hours and training certified by the medical professional. All applicants qualifying as holistic health practitioners shall not be required to comply with the provisions of Section D below. D. The applicant must pass a written examination prior to the issuance of the massage technician permit. The examination shall meet the following requirements: 1. The examination shall fairly determine the ability of the applicant to perform the work which the applicant will • be authorized to do by the permit applied for, and shall cover the following subjects: anatomy, physiology, hygiene, sanitation, massage theory, ethics of massage practice, first aid and CPR, and the provisions of this Chapter. -12- 2. Qualified persons shall prepare the examination. A qualified person shall have at least five (5) years of licensing or practice in his or her health care field and shall include licensed health care professionals, such as doctors, chiropractors, physical therapists and individuals • who have pursued required courses in and graduated from an approved massage school and received a diploma from the massage school. 3. The Chief of Police shall establish standards and procedures governing the administration and grading of all examinations and shall exercise such supervision as may be necessary to ensure compliance therewith. 4. The examination will be in the English language. In the event that the applicant requires that the examination be given in another language, he or she must notify the Chief of Police in advance and pay the appropriate fee for translation. 5. An applicant who fails to pass the examination shall • not be eligible for another examination until sixty (60) days after the previous examination. An applicant who fails to pass upon a third attempt, shall not be again eligible until six (6) months thereafter. An additional processing fee may be required to be filed with the Chief of Police prior to such examination. 5.50.040 Massage Technician Permit Issuance And Denial. A. Upon receipt of a written application for a permit, the Chief of Police shall conduct an investigation in such manner as he or she deems appropriate in order to ascertain whether such permit should be issued as requested. The Chief of Police shall approve, conditionally approve or deny the application within forty -five (45) days of the filing of an application. Said forty -five (45) isday period may be continued for an additional thirty (30) days if necessitated by the occurrence of events beyond the control of the Chief of Police. The Chief of Police shall issue such permit as requested, unless he /she makes any of the following findings: -13- 1. The applicant has been convicted of any of the following: (a) a violation of Penal Code Sections 266(h), 266(1), 314, 315, 316, 318, Subsections (a) , (b) or (g) of Penal Code Section 647 or 650.5, or that the applicant • is required to register under the provisions of Penal Code Section 290, (b) a violation of Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058, or (c) any offense in any other state is the equivalent of any of the above - mentioned offenses. 2. The applicant has engaged in conduct which would constitute an offense as described in paragraph (a) of Subsection 1, within five (5) years immediately prior to the • filing of any application. 3. The applicant has committed an act, which, if committed in this State would have been a violation of law or which, if done by a permittee under this Chapter, would be grounds for denial, suspension or revocation of the permit. 4. The applicant has been convicted of an act involving dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are substantially related to the qualifications, functions or duties of a massage technician. 5. The applicant has knowingly made a false, misleading or fraudulent statement of fact to the City in the permit application process. 6. The application does not contain the information • required by Section 5.50.035. 7. The applicant has not satisfied the requirements of this Chapter. -14- B. If the application is denied for failure to comply with Section 5 or 6 above, the applicant may not reapply for a period of 6 months from the date the application was denied. B. All massage technicians shall comply with the following conditions and any other conditions specified by the Chief of Police on issuance of the massage technician's permit. 1. Except to the extent required, in writing, by a state licensed medical practitioner, no massage technician, massage technician aide, or employee shall massage the genital or anal area of any patron or the breasts) of any female patron. No massage technician, massage technician aide or employee, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, anus, or, in the case of female, her breast(s), are fully covered. 2. No massage technician shall massage any patron unless the person's genitals, anus, and in the case of a female, her breast(s), are fully covered at all times while • the technicians, or other employee is present in the same room as the patron. 3. The massage technician shall wear a photo identification card prepared and issued by the City while administering a massage. The identification card shall be worn on outer clothing with the photo side facing out. If a massage technician changes his or her business address, he or she shall, prior to such change, obtain from the Chief of Police a new photo identification card and advise the Police Department, in writing, of the new business address. 4. Massage technicians shall not perform any massage at any location other than the location specified on the permit, • unless performing an off-premises massage pursuant to permit. 5. While on duty, the massage technician shall not use any name other than that specified on the photo identification card. mail 6. Massage attendants shall be fully clothed at all times. Clothing shall be of a fully opaque, non - transparent material and provide the complete covering from mid -thigh to three (3) inches below the collar bone. 7. The massage technician consents to the inspection of • the massage establishment by the City's Building and Safety, Fire Department and Police Department and the Health Department for the purpose of determining that the provisions of this Chapter or other applicable laws or regulations are met. The massage technician consents to the inspection of the occupied massage rooms by the Police Department for the purpose of determining that the provisions of this Chapter are met upon occurrence of any of the conditions described in Section 5.50.050(20) which would require the posting of the Notice to All Patrons. 5.50.045 Off - Premises Massage Permit. A. For purposes of this Chapter, a massage performed or • administered off - premises and requiring an off - premises massage permit shall be one performed or administered for money or other consideration by a licensed massage technician at a location other than a licensed massage establishment. B. No person shall perform or administer a massage off the premises of a massage establishment, for money or other consideration, without obtaining a massage technician permit under Sections 5.50.035 and 5.50.040 in conjunction with a valid operator's permit and an off - premises massage permit under this Section. Any person desiring an off - premises massage permit shall file a written application on the required form with Police Department Community Services officer, who shall conduct an investigation. The applicant shall accompany the application with • the appropriate filing fee. The application shall contain or be accompanied by the following information: 1. The complete name, residence and business address and telephone number of the applicant. -16- 2. The precise name and complete address and telephone number of each person receiving the off - premises massage. 3. The complete address at which the off - premises massage is to be conducted. 4. The specific reasons necessitating the performance • of the massage at a location other than a massage establishment. If the off - premises massage is to be conducted at a commercial business, during normal business hours while patron remains fully clothed, a letter confirming these conditions from the commercial business shall accompany the application. 5. Such other information deemed necessary by the Chief of Police. C. Upon receipt of a written application for an off - premises massage permit, the Chief of Police shall initiate an investigation to ascertain whether such permit should be issued as requested. Within ten (10) days of the filing of an application, the Chief of • Police shall conditionally approve or deny the application. The Chief of Police shall issue the permit unless he or she finds that it is not reasonably necessary to perform or administer the massage at a location other than the massage establishment. The Chief of Police may specify conditions on the issuance of the off - premises massage permit that are reasonably necessary to ensure compliance with this Chapter and other laws. 5.50.050 Requirements Of Operation. A. Facilities. 1. Structure. Massage shall be carried on in a structure which is located in a zoning district which permits such use. When a new massage establishment is constructed, three (3) sets of plans shall be submitted to the City of Newport Beach and the County • Health Care Agency for approval and shall be accompanied by the appropriate plan check fee. 2. Signs. Each operator shall post and maintain, adjacent to the main entrance and the front of the business, a readable sign identifying the premises as a massage establishment. The sign and -17- the front of the business shall not be illuminated by strobe or flashing lights. Each operator shall display the operator's permit in a conspicuous public place within the massage establishment. 3. Services List. Each operator shall post and maintain a • list of services available and the cost of such services in a conspicuous public place within the premises. No operator or, responsible managing employee, shall permit, and no massage technician shall offer or perform, any service other than those posted. 4. Lighting. Each operator shall provide in each room where massage is given sufficient lighting and ventilation that complies with the Uniform Building Code. The lighting in each massage room shall be at least one (1) forty (40) watt white light bulb. No strobe flashing lights shall be used. No colored lights shall be used nor shall any coverings be used which change the color of the primary light source. • 5. Bath Facilities. A minimum of one (1) toilet and one (1) separate wash basin shall be provided for patrons in each massage establishment, which basin shall provide soap or detergent and hot running water at all times and shall be located within close proximity to the area devoted to the performing of massage services. A permanently installed soap dispenser, filled with soap, and a single service towel dispenser shall be provided at the restroom handwash sink. No bar soap can be used. A trash receptacle shall be provided in each toilet room. Showers may be provided at the operator's option. 6. Separate Rooms. If male and female patrons are to be treated simultaneously at the same massage establishment separate massage rooms shall be provided for male and female patrons. • 7. Maintenance. All facilities for the massage establishment must be in good repair and shall be thoroughly cleaned and sanitized each day the business is in operation. All walls, floors and ceilings of each restroom and shower area shall be made smooth and easily cleanable. No carpeting shall be mom installed in any of these areas. 8. Massage Table. A massage table shall be provided in each massage room and the massage shall be performed on this massage table. The tables should have a minimum height of eighteen inches (18"). Two inch (2 ") thick foam pads with a maximum width of four • feet (4') may be used on a massage table and must be covered with durable, washable plastic or other waterproof material. Beds, floor mattresses and waterbeds may not be used in the administration of a massage. B. Operations. 1. Equipment. Each operator shall provide and maintain adequate equipment for disinfecting and sterilizing of instruments used in massage. 2. Inspections. The operator consents to the inspection of the massage establishment by the City's Building and Safety, Fire Department and Police Department and the County Health Department for the purpose of determining that the provisions of this Chapter • or other applicable laws or regulations are met. The City's Building and Safety, Fire Department, Police Department and the County Health Department may, from time to time, make an inspection of each massage establishment for the purpose of determining that the provisions of this Chapter, state law or other applicable laws or regulations are met. Routine inspections shall not occur more than twice a year, unless violations are found or complaints are received. Criminal investigations may be conducted as directed by the Chief of Police. The Police Department may inspect the occupied massage rooms for the purpose of determining that the provisions of this Chapter are met upon occurrence of any of the conditions described in Section 5.50.050(14) which would require the posting of the Notice To All Patrons. During an • inspection, the Police Department may verify the identity of all on -duty massage technicians. Inspections of the massage establishment shall be conducted during business hours. -19- 3. Linen. Common use of towels or linen shall not be permitted. Towels and linen shall be laundered or changed promptly after each use. Separate enclosed cabinets shall be provided for the storage of clean and soiled linen and shall be plainly marked "clean linen" and "soiled linen" and shall have • doors or covers. 4. Living Prohibited. No person or persons shall be allowed to live inside the massage establishment at any time. All living quarters shall be separate from the massage establishment. No food of any kind shall be prepared for sale or sold in the establishment unless an appropriate food vending permit is granted by the County of Orange. 5. Alcoholic Beverages /Drugs. No person shall enter, be in, or remain in, any part of a massage establishment licensed under this Chapter while in possession of, consuming, using or under the influence of, any alcoholic beverage or controlled substance. The owner, operator and manager shall be responsible to ensure that no • such person shall enter or remain upon the massage establishment. Service of alcoholic beverages shall not be permitted. 6. Recordings. No electrical, mechanical or artificial device shall be used by the operator or any employee of the massage establishment for audio and /or video recording or for monitoring the performance of a massage, or the conversation or other sounds in the massage rooms without the knowledge or consent of the patron. 7. Coverings. Each massage establishment shall provide to all patrons clean, sanitary and opaque coverings capable of covering the patrons specified anatomical areas, including the genital area, anus and female breast(s). No common use of such coverings shall be permitted and re -use is prohibited unless • adequately cleaned. 8. Records. Every person operating a massage establishment shall keep a record of the dates and hours of each treatment or service, the name and address of the patron, the name of technician administering such service and a description of the treatment or -20- service rendered. A short medical history form shall be completed by the operator to determine if the patron has any communicable diseases, areas of pain, high blood pressure or any physical condition which may be adversely affected by massage. These records shall be prepared prior to administering any massage or • treatment and shall be retained for a period of twenty -four (24) months after such treatment or service. These records shall be open to inspection only by officials charged with enforcement of this Chapter and for no other purpose. The Police Department shall periodically inspect the records to ensure compliance with this Section. The information furnished or secured as a result of any such records should be used only to ensure and enforce compliance with this Chapter or other applicable laws and shall remain confidential. Any unauthorized disclosure or use of such information by any officer or employee of the City of Newport Beach shall constitute a misdemeanor. 9. Hours Of Operation. No person shall operate a massage • establishment or administer a massage in any massage establishment or administer a massage pursuant to an off - premises massage permit between the hours of 11:00 p.m. and 7:00 a.m. All customers, patrons and visitors shall be excluded from the massage establishment during those hours. 10. Advertising. No massage establishment granted a permit under this article shall place,. publish or distribute or cause to be placed, published or distributed any advertising matter that depicts any portion of the human body that would reasonable suggest to prospective customers or clients that any service is available other than those services described in this Chapter, nor shall any massage establishment employ language in the text of such advertising that would reasonable suggest to a prospective patron • that any service is available other than those services authorized by this Chapter. 11. Insurance. No person shall engage in, conduct or carry on the business of a massage establishment unless there is on file with the City Clerk, in full force and effect at all times, -21- documents issued by an insurance company authorized to do business in the State of California evidencing that the permittee is insured under a liability insurance policy providing minimum coverage of $500,000.00 for injury or death to one person arising out of the operation of any massage establishment and the administration of a • massage. 12. Compliance. Proof of compliance with all applicable provisions of the Newport Beach Municipal Code shall be provided. 13. Doors. All front, reception, hallway or front exterior doors (except back or rear exterior doors used for employee entrance to and exit from the massage establishment) shall be unlocked during business hours. No massage may be given within any cubicle, room, booth or any area within a massage establishment which is fitted with a door capable of being locked, unless the only door is an exterior door. 14. Notices. The Chief of Police may require that the following notice: NOTICE TO ALL PATRONS THIS MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION BY THE NEWPORT BEACH POLICE DEPARTMENT WITHOUT PRIOR NOTICE. be posted in the event that any employee of the massage establishment or any person who has been aided and abetted by an employee of the massage establishment has been found, after full hearing by administrative proceeding or State Court, to have violated any of the offenses listed in Section 5.50.025 and 5.50.040. The notice set forth above shall be prepared and issued by the Chief of Police. The notice shall be conspicuously posted in a location • within the massage establishment that is easily visible to any person entering the premises and in each massage room. The notice shall be so posted for twelve (12) months following the violation of any of the offenses set forth above. The requirement for posting the notice described in this IWxM Section is cumulative and in addition to all other remedies, violations and penalties set forth in this Chapter, or in the ordinances, laws, rules or regulations of the City of Newport Beach, County of Orange and the State of California. 5.50.055 Changes Of Business. • Every Massage establishment operator shall report immediately to the Police Department Community Services Officer any and all changes of ownership or management of the massage establishment, including, but not limited to, changes of manager or other person principally in charge, stockholders holding more than five percent (5°s) of the stock of the corporation, officers, directors and partners in any and all changes of name, style or designation under which the business is to be conducted, and all changes of address or telephone numbers of the massage business. A change of location of any of the premises may be approved by the Chief of Police provided there is compliance with all applicable regulations of the City of Newport Beach. . 5.50.060 Fees. The City Council shall establish by resolution, and from time to time, may amend the fees for the administration of this Chapter. The City shall include in this resolution a Health Services Fee Schedule prescribing annual fees to be paid by the operator of each massage establishment, such fees to be paid directly to the County of Orange Health Department and retained by the County as reimbursement for said services related to this Chapter. Fees required by this Chapter shall be in addition to any required under any other chapter of this Code. 5.50.065 Exemption; Existing Permittees. A. The requirements of this Chapter shall have no application and no effect upon and shall not be construed as • applying to any persons designated as follows: physician, surgeon, chiropractor, osteopath or any registered or licensed vocational nurse working under the supervision of a physician, surgeon, chiropractor or osteopath duly licensed to practice their respective professions in the State of California, nor shall the -23- requirements of this Chapter apply to any treatment administered in good faith in the course of the practice of any healing art or professions by any person licensed by the state of California to practice any such art or profession under the Business and Professions Code of the State of California or of any other law of • this state. Practical nurses or other persons without qualifications as massage technicians, or other persons not otherwise licensed by the State of California to practice pursuant to the Medical Practice Act, whether employed by physicians, surgeons, chiropractors or osteopaths or not, may not give massage or massage procedures. B. Commencing on the date of adoption of this Chapter, permits are to be issued in accordance with the provisions of this Chapter. C. Existing operator's and massage technicians permits shall continue in effect until expiration and shall be renewed in accordance with provisions of this Amended Ordinance. • 5.50.070 Transfer And Duration Of Permits. A. No permit issued hereunder shall be transferable to any other person or establishment, provided, however, an additional location or change of location of a massage technician permit will be allowed upon prior written notice to the Chief of Police and payment of the appropriate transfer fee. B. All operator, massage technician and off - premises massage permits shall be issued for the period of twelve (12) months and shall expire twelve (12) months from its issuance except applicants who qualify as a holistic health massage operator or holistic health practitioner shall be renewed every 3 years. C. Applications for the next ensuing permit shall be filed with the Chief of Police before the expiration of the existing • permit. Such renewal applications must be filed no later than thirty (30) days prior to the expiration of the permit to prevent a lapse of the permit. -24- D. Each applicant for renewal shall file such information as may be required by the Chief of Police to update the information required for his or her original permit application. Each renewal applicant shall include a statement in writing from a licensed physician in the State of California that he or she has examined the applicant within the past thirty (30) day period preceding said • application and believes the renewal applicant to be free from all communicable diseases. The applicant shall accompany the application for renewal with the appropriate filing fee. 5.50.075 Suspension, Revocation, Denial And Appeal. A. Violation And Non - Compliance. The Chief of Police may refuse to renew a permit or may revoke or suspend an existing permit on the grounds that the applicant or permit holder has failed to comply with the permit conditions or other requirements of this Chapter. If a suspended permit lapses during the suspension period, a new application must be made at the end of the suspension period. In any such case, the applicant or permit • holder shall have the right to appeal to the City Council in the time and manner set forth in this Section. B. Revocation And Suspension Of Operator's Permit. 1. The Chief of Police may revoke or refuse to renew an operator's permit if he or she makes any of the findings for denial of a permit under Section 5.50.025(A), or upon any subsequent violation of any provision within one year following prior suspension under subsection 2 below, or upon demonstrated inability, to operate or manage the massage establishment in a law abiding manner, thus necessitating action by law enforcement officers; 2. The Chief of Police may suspend an operator's permit for a period of thirty (30) days for each violation of Section • 5.50.025(B), 5.50.045(B) or 5.50.050. C. Revocation And Suspension Of Massage Technician Permit. 1. The Chief of Police may revoke or refuse to renew a massage technician permit if he or she makes any of the findings for denial of a permit under Section 5.50.040(A), or -25- upon any subsequent violation of any provision of this Chapter within one year following a suspension under subsection 2 below; 2. The Chief of Police may suspend a massage technician permit for a period of thirty (30) days for each violation of • Section 5.50.040(B), 5.50.045(B) or 5.50.050. D. Notice. When the Chief of Police concludes that grounds for denial, suspension, revocation or refusal to renew a permit exist, the Chief of Police shall serve the applicant or permit holder, either personally or by certified mail, addressed to the business or residence address of applicant or permit holder, with a Notice Of Denial or Notice Of Intent To Suspend, Revoke Or Refuse To Renew Permit. This Notice shall state the reasons for the proposed action, the effective date of the decision if no appeal is filed by applicant or permit holder and the right of the applicant or permit holder to appeal to the City Council and the decision of the Chief of Police. • E. Appeal. The right to appeal to the City Council shall terminate upon the expiration of fifteen (15) days following the receipt of the Notice. The City Council of the City of Newport Beach may preside over the hearing on appeal or, in the alternative, the Chief of Police may appoint a hearing officer to conduct the hearing, receive relevant evidence and to submit to the City Council findings and recommendations to be considered by the City Council. The City Council shall render its decision within forty -five (45) days from the date of the hearing or, in the event that a hearing officer has been appointed, within forty -five (45) days from the date on which • the City Council receives the findings and recommendations of the hearing officer. The decision of the City Council shall be final. 5.50.080 Violation And Penalty. A. Every person, except those persons who are specifically exempt by this Chapter, whether acting as an individual, owner, -26- employee of the owner, operator or employee of the operator, or whether acting as a mere helper for the owner, employee or operator, or whether acting as a participant or worker in any way, who gives a massage or operates a massage establishment or who advertises massage services within the City without first obtaining • a permit and paying for a license to do so from the City, or shall violate any provision of this Chapter, shall be guilty of a misdemeanor. B. Any massage establishment operated, conducted or maintained contrary to the provisions of this Chapter shall be, and the same is hereby declared to be, unlawful and a public nuisance, and the City may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in the manner provided by law, and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such • massage establishments and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary to the provisions of this Chapter. 5.50.085 Severability. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance, and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. • SECTION 2: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. -27- SECTION 3: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 24th day of October , 1994, and adopted on the 14th day of November , 1994, by the following vote, to wit: • AYES, COUNCILMEMBERS HEDGES, SANSONE, WATT TURNER HART DEBAY NOES, COUNCILMEMBERS NONE ABSENT COUNCILMEMBERS COX ATTEST: CITTFY 'CLERK • • MAYO G?�wC%l own