HomeMy WebLinkAbout03 - Massage Establishment RegulationsCITY OF
y NEWPORT BEACH
City Council Staff Report
March 10, 2015
Agenda Item No. 3
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Jay R. Johnson, Chief of Police — (949) 644 -3701, jjohnson @nbpd.org
PREPARED BY: Jay Short, Lieutenant
PHONE: (949) 644 -3778, jshort@nbpd.org
TITLE: Massage Establishment Regulations
ABSTRACT:
The City of Newport Beach's ( "City ") Police Department regulates massage establishments through a
permit process pursuant to Chapter 5.50 of the Newport Beach Municipal Code ( "NBMC "). Recently, the
California Legislature passed, and Governor Brown signed into law, Assembly Bill ( "AB ") 1147. AB 1147
expands the City's ability to regulate massage establishments to ensure they do not turn into public
nuisances within our community. The attached ordinance regulates massage establishments consistent
with AB 1147 and strikes an appropriate balance between the needs of the community and the rights of
persons to conduct their profession.
RECOMMENDATION:
Introduce Ordinance No. 2015 -2, An Ordinance of the City Council of the City of Newport Beach Amending
Newport Beach Municipal Code Chapter 5.50 Regulating Massage Establishments and Repealing Chapter
5.64 Regulating Holistic Health Practitioners, and pass to second reading on March 24, 2015.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
Since 1994, the Police Department has regulated massage establishments pursuant to NBMC Chapter
5.50 through a City permit process. At inception, the motivation of the City permit process was to
discourage unethical practices of massage which may result in a violation of subdivision (a) or (b) of
Section 647 of the California Penal Code governing prostitution.
In September, 2008, the California Massage Therapy Council ( "CAMTC ") was created by an act of the
California Legislature and began accepting applications for massage certification in 2009. The CAMTC is
a private non - profit public benefit corporation providing voluntary certification that enables massage
therapists to practice statewide. CAMTC's mission is to protect the public by certifying qualified massage
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professionals in California
The legislative bill that gave authority to the CAMTC to regulate massage practices also removed authority
from local municipalities from enacting new ordinances or enforcing existing ordinances that conflicted with
Senate Bill No. 731. Therefore, certain sections within the current version of NBMC Chapter 5.50 are
unenforceable.
The Police Department supports the CAMTC and agrees with their mission to protect the public by
certifying qualified massage professionals in California. CAMTC certified professionals are recognized
throughout California for having met the State's educational requirements and passed an extensive
background check. Once approved, massage technicians are certified to work anywhere in California for
two (2) years without needing a City or county massage technician's permit.
In 2014, CAMTC was re- authorized with legislative changes written in AB 1147, becoming effective as of
January 1, 2015. AB 1147 authorizes the City to adopt and enforce local zoning, business licensing, and
reasonable health and safety requirements for massage establishments or businesses with CAMTC -
certified massage therapists and practitioners.
The proposed ordinance codifies the requirement of massage therapists conducting business within the
City to obtain and maintain in good standing, a CAMTC certification. In addition, it requires massage
establishment owners, managers, or responsible parties to obtain an "Operator's Permit" in order to further
facilitate the ethical practice of massage therapy and compliance with State law by relying upon the
uniform statewide regulations.
Finally, it will no longer be necessary to regulate massage services provided by holistic health practitioners
under NBMC Chapter 5.64 because any massage services provided by holistic health practitioners will be
covered under amended NBMC Chapter 5.50.
Accordingly, the proposed ordinance repeals NBMC Chapter 5.64 and deletes it in its entirety.
At the Council's meeting of February 24, 2015, the Council and public asked for additional review of two
items. One item was to clarify whether or not the fee structure includes a cost of a background check, and
whether that was applicable or could be removed from the fee if a person already has had one done, and it
is in a form acceptable to the Police Department. The fee structure submitted to the Revenue Division for
study did not include background checks for any massage establishment operators. This omission was
intentional in order to make the fee consistent amongst all applicants. The second item was whether the
code change should allow "couples" massages, where two persons receive massages in the same room at
the same time. We agreed these were acceptable, and have corrected the language of the code change
accordingly.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California Environmental Quality
Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably
foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as
defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3,
because it has no potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at
which the City Council considers the item).
ATTACHMENTS:
Description
Attachment A - Ordinance
Attachment B - Redline
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ATTACHMENT A
ORDINANCE NO. 2015-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AMENDING
NEWPORT BEACH MUNICIPAL CODE CHAPTER 5.50
REGULATING MASSAGE ESTABLISHMENTS AND
REPEALING CHAPTER 5.64 REGULATING HOLISTIC
HEALTH PRACTITIONERS
WHEREAS, the City of Newport Beach ( "City ") currently regulates massage
establishments pursuant to Chapter 5.50 of the Newport Beach Municipal Code
( "NBMC ") through a City permit process;
WHEREAS, in 2008, 2011 and 2014, the State Legislature adopted provisions in
the California Business and Professions Code to provide for State certification of
massage therapists and practitioners by a non - profit organization called the "California
Massage Therapy Council' ( "CAMTC) (Bus. & Prof. Code §§ 4600 - 4621);
WHEREAS, cities can adopt and enforce local zoning, business licensing, and
reasonable health and safety requirements for massage establishments or businesses
with CAMTC- certified massage therapists and practitioners;
WHEREAS, the City desires to reduce City involvement in local massage therapy
licensing, while still encouraging and facilitating the ethical practice of massage therapy
and complying with State law, by relying upon the uniform statewide regulations and by
restricting the commercial practice of massage in the City to those persons duly certified
to practice by the CAMTC;
WHEREAS, establishing one regulatory scheme for massage services will create
a consistent and clear process for applicants and will enable consumers to identify
legitimate massage professionals, thus protecting the health, safety, and welfare of the
City and its residents;
WHEREAS, Chapter 5.64 of the NBMC regulating holistic health practitioners is
no longer necessary in light of amendments to Chapter 5.50 of the NBMC, and thus it is
recommended that Chapter 5.64 be repealed; and
WHEREAS, this ordinance is enacted pursuant to California Government Code
sections 51030 -51934 and Business and Professions Code sections 4600 et seq.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
SECTION 1: Chapter 5.50 of the Newport Beach Municipal Code is hereby
amended and renumbered as follows:
Chapter 5.50
MASSAGE ESTABLISHMENTS
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Sections:
5.50.005 Findings and Purpose.
5.50.010 Definitions.
5.50.015 State Certification and Operator's Permit Required.
5.50.020 Application for Operator's Permit.
5.50.025 Operator's Permit Issuance and Denial.
5.50.030 Requirements of Operation.
5.50.035 Changes of Business.
5.50.040 Operator's Permit Exemptions.
5.50.045 Inspection by City Officials and Notices of Violation.
5.50.050 Operator's Permit Expiration and Renewal.
5.50.055 Suspension, Revocation, Denial and Appeal.
5.50.060 Fees.
5.50.065 Violation and Penalty.
5.50.070 Severability.
5.50.005 Findings and Purpose.
The City Council finds and declares as follows:
A. It is the purpose and intent of this chapter to provide for the orderly regulation of
offices and establishments providing massage therapy services, and to prevent and
discourage the misuse of massage therapy as a front for prostitution and related
activities in violation of state law, all in the interest of the public health, safety, and
welfare, by providing certain minimum building, sanitation, and operation standards for
such businesses, and by requiring certain minimum qualifications for the operators and
practitioners of such businesses. It is the further intent of this chapter to streamline local
massage therapy permitting procedures, while still facilitating and advancing the ethical
practice of massage therapy, by relying upon the uniform statewide regulations enacted
by the Legislature in 2008, 2011 and 2014 as Business and Professions Code sections
4600 et seq., and by restricting the commercial practice of massage in the city to those
persons duly certified to practice by the California Massage Therapy Council formed
pursuant to those statutes.
B. The restrictions and requirements contained in this chapter reduce the burdens on
the Police Department and permit the deployment of the police personnel such that
more serious crimes may be prevented.
C. The regulations and restrictions contained in this chapter tend
massage establishments from degenerating into houses of prostitution
utilized in this chapter bear a reasonable and rational relationship to the
be achieved.
5.50.010 Definitions.
to discourage
and the means
goals sought to
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Unless the context of the particular provision otherwise requires, the definitions and
provisions contained in this section shall govern the construction, meaning, and
application of words and phrases used in this chapter.
"Approved School of Massage" means any school or institution of learning that is
recognized as an "approved school" pursuant to Business and Professions Code
Division 2, Chapter 10.5, as it may be amended.
"California Massage Therapy Council" means the massage therapy organization formed
pursuant to California Business and Professions Code section 4600, and following, as
amended, and referred to as CAMTC herein.
"Certified Massage Business" means any business where the only persons employed or
used by that business to provide massages services have current and valid State
Certifications.
"Certified Massage Technician" means any person holding a current and valid State
Certificate issued by the CAMTC pursuant to California Business and Professions Code
section 4600, and following, as amended, whether as a massage practitioner or
massage therapist, as defined therein.
"Certified Sole Proprietorship" means any massage business where the owner is the
only person employed or used by that business to provide massage services and the
owner has a current and valid unconditional State Certification.
"Chief of Police" means the Chief of Police of the City of Newport Beach, or his /her
designated representative.
"City" means the City of Newport Beach.
"City Council" means the City Council of the City of Newport Beach.
"City Manager' means the City Manager of the City of Newport Beach, or his /her
designated representative.
"Conviction," "convicted" means a plea or verdict of guilty or a conviction following a
plea of nolo contendere.
"Customer area" means areas open to customers of the establishment.
"Manager' means the person(s) designated by the operator of the massage
establishment to act as the representative and agent of the operator in managing day -
to -day operations with the same liabilities and responsibilities. Evidence of management
includes, but is not limited to, evidence that the individual has power to direct or hire and
dismiss employees, control hours of operation, create policy or rules or purchase
supplies. A manager may also be an owner.
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"Massage" means any method of treating the external parts of the body for remedial,
hygienic, relaxation or any other reason or purpose, whether by means of pressure on,
friction against or stroking, kneading, tapping, pounding, vibrating, rubbing or other
manner of touching external parts of the body with the hands, or with the aid of any
mechanical or electrical apparatus or appliance with or without supplementary aids such
as rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment or other similar
preparations commonly used in this practice.
"Massage establishment" means any business at a fixed location where massage is
performed for compensation, excluding those locations where massage is only provided
on an out -call basis.
"Operator" or "Owner" means any and all owners of a massage establishment that are
responsible for its day -to -day operations including any of the following persons: the
managing responsible officer /employee, a general partner, a limited partner, a
shareholder, a sole proprietor, or any person who has a five (5) percent or greater
ownership interest in a massage establishment whether as an individual, corporate
entity, limited partner, shareholder or sole proprietor.
"Operator's Permit" means a permit issued by the Police Department upon submission
of satisfactory evidence as required that a massage business or sole proprietorship
employs or uses only certified massage therapists or practitioners possessing valid and
current State Certifications and has satisfied all other requirements pursuant to the
provisions of this chapter.
"Person" means any individual, or corporation, partnership, association or other group
or combination of individuals acting as an entity.
"Police Department" means the Police Department of the City of Newport Beach.
"State Certification" or "State Certificate" means a valid and current certification properly
issued by CAMTC pursuant to California Business & Professions Code section 4600,
and following, as amended.
For purposes of this chapter the term "employee" shall include independent contractors.
5.50.015 State Certification and Operator's Permit Required.
On or after May 1, 2015, it shall be unlawful for any individual to practice massage for
compensation within the City unless that individual is a Certified Massage Technician
and further, it shall be unlawful for any massage establishment within the City to provide
massage services or allow massage services to be performed at the massage
establishment unless all individuals performing massage at the massage establishment
are Certified Massage Technicians.
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In addition, it shall be unlawful for any person, association, partnership, company or
corporation to operate a massage establishment within the City without first obtaining an
operator's permit pursuant to 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 a massage establishment shall file a
written application on the required form with the Police Department Civilian Investigator
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 for an operator's permit does not authorize operation of a
massage establishment unless and until such permit has been properly issued. The
application shall contain or be accompanied by the following information in writing:
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 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, including limited partners. If it is a limited partnership, it
shall furnish a copy of its certificate of limited partnership filed with the Secretary
of State. If one or more of the partners is a corporation, the provisions of this
subsection pertaining to corporations shall apply to that corporation. The
applicant corporation or partnership shall designate one of its officers or general
partners to act as its responsible managing officer. Such designated persons
shall complete and sign all application forms required for an individual applicant
under this chapter, but only one application fee shall be charged.
2. The full and true legal name under which the massage establishment will be
conducted.
3. The complete address and all telephone numbers of the massage establishment.
4. The full and true legal name and mailing address of the owner or owners of the
massage establishment.
5. A copy of a State Certificate issued to each person who will be providing
massage services at the massage establishment.
6. A copy of a photographic government- issued identification card of the owner or
owners of the massage establishment.
7. A statement that the business will only employ or use persons with a State
Certificate to provide massage services, and that failure to comply may result in
the suspension or revocation of the operator's permit.
8. A statement that the applicant will provide written notification of any changes to
the original application within 10 days of the change occurring.
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9. Authorization for the City to investigate the truth of the information contained in
the application.
10.A statement by the applicant that he or she certifies under penalty of perjury that
all information contained in the application is true and correct.
11.A signed statement that the owner /applicant shall be responsible for the conduct
of all employees or independent contractors working on the premises of the
massage establishment and that failure to comply with any local, state, or federal
law, or with the provisions of this chapter may result in the revocation of the
operator's permit.
B. In addition to the requirements in section 5.50.020(A), the following information shall
be provided by any owner /applicant who does not have a State Certificate and owns
five (5) percent or more of the massage establishment:
1. Acceptable proof that the applicant is at least eighteen (18) years of age;
2. Full, true name, and other names used, date of birth and valid and current
driver's license and /or identification card issued by a state or federal
governmental agency or other photographic identification bearing a bona fide
seal by a foreign government;
3. Two (2) photographs to be taken by the Police Department;
4. Current address and all previous residential addresses for eight (8) years
immediately preceding the present address of the applicant;
5. Business, occupation, and employment history for eight (8) years preceding the
date of application;
6. The name and address of any massage business or other like establishment
owned or operated by a person subject to the background check including but
not limited to history, if any, with any agency, board, city, county, territory, or
state and dates of issuance, denial, restriction, revocation, or suspension, and
the reasons therefor of any individual or business permit; and
7. A complete set of fingerprints taken by the Police Department subject to a fee to
cover actual costs to determine whether the applicant has any of the following:
a. Convictions for any crime involving conduct which requires registration
under California Penal Code section 290 (Sex Offender Registration Act);
b. Convictions of violations of California Penal Code sections 266i
(pandering), 315 (keeping or residing in house of ill- fame), 316 (keeping
disorderly house), 318 (prevailing upon person to visit place for gambling
or prostitution), 647(b) (prostitution), 653.23 (supervision of prostitute);
c. Convictions of any felony offense involving the sale of a controlled
substance specified in section 1104, 11055, 11056, 11057, or 11058 of
the Health and Safety Code;
d. Convictions of crimes designated in Government Code section 51032
(massage — grounds for denial of license), or any crime involving
dishonesty, fraud, deceit, violence or moral turpitude;
e. Injunctions for nuisances under Penal Code section 11225 — 11235 (red
light abatement law);
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f. Convictions in any other state of any offense which, if committed or
attempted in this state, would have been punishable as one or more of the
referenced offenses of this subdivision;
g. Convictions for conspiracy or attempt to commit any such offense
described in subsections a -f of this subpart.
C. The Chief of Police or authorized representative shall have up to sixty (60) days
after the submission of all required information to complete the investigation. The sixty
(60) day period may be extended for up to thirty (30) additional days, if necessary, to
complete the investigation. Upon completion of the investigation, an operator's permit
may be issued if the requirements under section 5.50.025 are satisfied.
5.50.025 Operator's Permit Issuance and Denial.
A. The Police Department may issue an operator's permit to a Certified Massage
Business that demonstrates all of the following:
1. The applicant has submitted an application in compliance with section 5.50.020;
2. That the operation, as proposed by the applicant, if permitted, complies with all
applicable laws, including but not limited to, the City's building, zoning, business
license, and health regulations;
3. The massage establishment employs or uses only Certified Massage
Technicians to perform massage whose certifications are valid and current and
that owners of the State Certificates are the same persons to whom CAMTC
issued valid and current identification cards;
4. That the applicant has not made a material misrepresentation in the application
or with respect to any other document or information required by the City with
respect to the application; and
5. That the background check for any applicant/owner, if authorized by this chapter,
shows that such person:
a. Has not been required to register under the provisions of section 290 of
the California Penal Code;
b. Has not had a conviction in a court of competent jurisdiction within eight
(8) years preceding the application for any of the crimes identified in
section 5.50.020(B)(7);
c. Has not had an individual or business permit or license with any agency,
board, city, county, territory, or state denied, revoked, restricted, or
suspended within the last eight (8) years; and
d. Has not been subject to an injunction for nuisance under Penal Code
section 11225 — 11235 within the last eight (8) years.
B. The Police Department may deny an application for an operator's permit for any of
the following reasons:
1. The applicant made a material misstatement or omission in the application or in a
previous application. If the Police Department finds substantial evidence that an
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application contains a knowing or intentional material misstatement or omission,
the Police Department shall deny the application;
2. The applicant violated any provision of this chapter and the permit was previously
suspended or revoked for any violation of this chapter;
3. The applicant violated any provision of this chapter on more than two (2)
occasions provided that the applicant received timely notice of each violation;
4. The applicant has been convicted of or pled guilty or no contest to any offense
involving the use of force or violence upon another person, pandering,
solicitation, or prostitution;
5. The applicant was convicted of, or pled guilty or no contest to a violation of Penal
Code section 415 as a result of an arrest for violation of Penal Code section
647(b);
6. The applicant has previously held a massage establishment license, massage
practitioner permit or similar permit or license that the City of Newport Beach, the
state, or any other public agency has suspended or revoked or that the permittee
surrendered while under investigation or being prosecuted by a government
entity in a civil, administrative, or criminal proceeding for a violation of local, state
or federal law; or
7. The applicant, any business owned or managed by the applicant while the
applicant owned or managed the business, the applicant's current employer, or
the applicant's former employer during the applicant's employment is or was a
named party subject to a permanent injunction against the conducting or
maintaining of a nuisance under Cal. Penal Code sections 11225 through 11235,
or Cal. Health & Safety Code section 11570 et seq., or equivalent offenses under
the laws of another jurisdiction.
5.50.030 Requirements of Operation.
A. Facilities.
1. Structure. Massage establishments shall be 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 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 the front of the business shall not be illuminated by
strobe or flashing lights. Each operator and /or on duty manager shall display the
operator's permit in a conspicuous public place in the lobby of the massage
establishment. Each Certified Massage Technician shall display his or her State
Certificate in a conspicuous public place and have his or her identification card in
his or her possession while providing massage services for compensation. The
hours of operation must be posted in the front window and clearly visible from the
outside. The operator and /or on duty manager must also post, on a daily basis in
a conspicuous public place in the lobby, the name of the operator and /or on duty
manager as well as any employees or independent contractors providing
massage services.
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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 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 sixty (60) watt white light
bulb and shall be activated at all times while the patron is in such room or
enclosure.
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 hand wash 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. 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 installed in any of
these areas.
7. Massage Table. A massage table shall be used for all massage therapy, with the
exception of "Thai," "Shiatsu," and similar forms of massage therapy, which may
be provided on a padded mat on the floor. For all massage therapy where a
massage table is required pursuant to this subsection, the tables should have a
minimum height of eighteen (18) inches. Two (2) inch thick foam pads with a
maximum width of four (4) feet may be used on a massage table and must be
covered with durable, washable plastic or other waterproof material. Beds, floor
mattresses and waterbeds are not permitted on the premises.
B. Operations.
1. General Conditions. All massage establishments and individuals providing
massage for compensation shall comply with the following conditions:
a. No person shall massage the genitals or anal region of any patron nor
shall an operator or manager of a massage establishment allow or permit
such massage. In addition, no person shall provide massage of female
breasts without the written consent of the person receiving the massage
and a referral from a licensed California health care provider nor shall an
operator or manager of a massage establishment allow or permit such
massage.
b. No person shall, while performing any task or service associated with the
massage establishment, be present in any room with a patron unless the
patron's genitalia and in the case of a female, her breast(s), are fully
covered.
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c. No person shall massage any patron unless the patron's genitalia, and in
the case of a female, her breast(s), are fully covered.
2. Equipment. Each operator and /or on duty manager shall provide and maintain
on the premises adequate equipment for disinfecting and sterilizing instruments
used in massage.
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. Roster. The owner, operator, or on duty manager of the massage establishment
shall keep a complete and current list of the names and residence addresses of
all massage technicians and employees of the massage establishment and the
name and residence addresses of the manager or managing employee purported
to be principally in charge of the operation of the massage establishment. This
roster shall be kept at and /or on the premises and be available for inspection by
officials charged with enforcement of this chapter.
8. 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
shared use of such coverings shall be permitted and re -use is prohibited unless
adequately cleaned.
9. 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 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
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open to inspection upon demand 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. Such records shall
be kept on the premises of the massage establishment for a period of two years.
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 any other
applicable State or Federal 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.
10. Hours of Operation. The owner must advise the City of the business hours and
any changes in hours, in writing, at the time of the application for an operator's
permit. No massage establishment shall be open and no massage shall be
provided between the hours of ten p.m. (10:00 p.m.) and eight a.m. (8:00 a.m.).
A massage begun any time before ten p.m. (10:00 p.m.) must nevertheless
terminate at ten p.m. (10:00 p.m.). All customers, patrons and visitors shall be
excluded from the massage establishment during these hours and be advised of
these hours. The hours of operation must be displayed in a conspicuous public
place in the lobby within the massage establishment and in the front window
clearly visible from the outside.
11. Dress Code. No employee or independent contractor of a massage
establishment or any other person engaged in the practice of massage for
compensation shall dress in attire that is transparent or see-through or
substantially exposes the person's undergarments. In addition, no employee or
independent contractor of a massage establishment or any other person
engaged in the practice of massage for compensation shall dress in a manner
that exposes the person's breasts, buttocks, or genitals or in a manner that
constitutes a violation of section 314 of the California Penal Code.
12. Advertising. No massage establishment granted an operators permit under this
chapter 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 reasonably 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 reasonably suggest to a prospective patron that any service is available
other than those services authorized by this chapter.
13. Disabilities. All massage establishments must comply with all Federal and State
laws and regulations for disabled customers.
14. Doors. All interior doors of a massage establishment shall be unlocked during
business hours. All massage establishments with more than one employee shall
keep front exterior doors 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.
15.Access. No person(s) other than the operator, manager, employees, and
customers will be allowed beyond the front lobby, located directly inside the front
door entrance during hours of operation. Any other person(s) found beyond the
Page 111
3 -13
first interior door leading to the inside of the business including, but not limited to,
hallways, massage rooms, reception /business offices or lounge area will be in
violation of this section.
16. Discrimination. No massage establishment may discriminate or exclude patrons
on the basis of a protected class such as race, color, national origin, ancestry,
religion, physical or mental disability, medical condition, marital status, veteran
status, sex, sexual orientation, age or any other basis protected by applicable
Federal or State laws and regulations
5.50.035 Changes of Business.
A. Every massage establishment operator shall report to the Police Department by way
of written notification within ten (10) days 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 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.
B. No operator's permit may be sold, transferred or assigned by a permit holder, or by
operation of law, to any other person or persons. Any such sale, transfer or
assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a
voluntary surrender of such permit and such permit shall thereafter be null and void;
provided and excepting, however, that if the permit holder is a partnership and one or
more of the partners should die, one or more of the surviving partners may acquire, by
purchase or otherwise, the interest of the deceased partner or partners without effecting
a surrender or termination of such operators permit, and in such case, the permit, upon
notification to the Chief of Police, shall be placed in the name of the surviving partners.
An operator's permit issued to a corporation shall be deemed terminated and void when
either any outstanding stock of the corporation is sold, transferred or assigned after the
issuance of an operator's permit, or any stock authorized but not issued at the time of
the granting of a permit is thereafter issued or sold, transferred or assigned.
5.50.040 Operator's Permit Exemptions.
A. The provisions of this chapter shall not apply to the following classes of persons or
businesses while engaged in the performance of their duties:
1. Physicians, surgeons, chiropractors, osteopaths, nurses or any physical
therapists duly licensed to practice their respective professions in the State of
California and working within the scope of their licenses.
2. Barbers, cosmetologists, estheticians, and manicurists who are duly licensed
under the laws of the State of California while engaging in practices within the
scope of their licenses, except that this provision shall apply solely to the
massaging of the neck, face, hands and feet, and /or scalp of the customers, and
this exception shall not apply to full body work or full body massage.
Page 112
3 -14
3. Hospitals, nursing homes, sanatoriums, or other health facilities duly licensed by
the State of California.
4. Accredited junior colleges and colleges or universities whose coaches and
trainers are acting within the scope of their employment.
5. Trainers of amateur, semi - professional or professional athletes or athletic teams
while engaging in their training responsibilities for and with athletes and trainers
working in conjunction with a specific athletic event such as an outdoor road or
bike race.
5.50.045 Inspection by City Officials and Notices of Violation.
A. The investigating officials of the City shall have the right to enter the premises during
regular business hours prior to the issuance of a permit and subsequently for the
purpose of making reasonable inspections to enforce compliance with this chapter and
with building, fire, electrical, plumbing, and /or health and safety regulations. In the
event an operator's permit has been issued, it may be revoked or suspended in the
manner set forth in this chapter.
B. Whenever City officials make an inspection of a massage establishment and find
that any provision of this chapter has been violated, he or she shall give notice of such
violation by means of an inspection report, administrative citation, or other written
notice. In any such notification, the investigating person shall set forth the specific
violation or violations found and shall notify the holder of the operator's permit that
failure to comply with any notice issued in accordance with the provisions of this chapter
may result in the revocation or suspension of the permit.
C. The permit holder shall take immediate action to correct violations, and City officials
may re- inspect the business for compliance.
D. The permit holder may be issued a warning that any future violation of this chapter
may result in suspension or revocation of the permit or the City officials may establish a
specific and reasonable period of time for the correction of the violation(s). No time to
correct need be given for health and safety violations or violations of criminal law.
5.50.050 Operator's Permit Expiration and Renewal.
A. An operators permit shall be for a period of three years provided that the permit
holder continues to meet the requirements set out in this chapter.
B. Applications for the next ensuing operator's permit shall be filed with the Chief of
Police before the expiration of the existing permit. Temporary permits will not be issued
and renewal applications must be filed no later than sixty (60) days prior to the
expiration of the permit to prevent a lapse.
C. Renewal applications shall require such information as may be required by the Chief
of Police to update the information contained in the original application. The applicant
shall accompany the application for renewal with the appropriate filing fee established
by resolution of the City Council.
Page 113
3 -15
5.50.055 Suspension, Revocation, Denial and Appeal.
A. Revocation and Suspension of Operator's Permit. The Chief of Police may refuse to
renew an operator's permit or may revoke or suspend an existing operator's permit on
any of the following grounds:
1. The permit holder has made a material misrepresentation on the application for
an operator's permit or renewal;
2. The permit holder has engaged in conduct or operated a massage establishment
in a manner which violates any of the provisions of this chapter, any conditions of
the operator's permit, or any of the laws which would have been grounds for
denial of the permit;
3. The permit holder employs or uses any person who is not a Certified Massage
Technician to perform massage services;
4. Violations of this chapter or of California Business and Professions Code section
4600 et seq. have been committed by the massage establishment or by anyone
performing massage services on behalf of the massage establishment; or
5. The permit holder has engaged in fraud, misrepresentation, or false statements
in obtaining or maintaining an operator's permit.
B. If a suspended permit lapses during the suspension period, a new application cannot
be made until the end of the suspension period.
C. The term of suspension shall last no more than sixty (60) days.
D. Notice.
1. 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, and the right of the applicant or permit holder to appeal the decision to
the City Manager. The decision will be final if no appeal is filed within the time
permitted.
E. Appeal.
1. The right to appeal to the City Manager shall terminate upon the expiration of
fifteen (15) days from the date of mailing or service of the notice. The notice of
appeal is to be sent to the Police Department of the City of Newport Beach.
2. In the event an appeal is timely filed, the suspension or revocation shall not be
effective until a final decision has been rendered by the City Manager or his or
her designee. If no appeal is filed, the suspension or revocation shall become
effective upon expiration of the period for filing appeals.
Page 114
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3. The City Manager may preside over the hearing on appeal or, in the alternative,
the City Manager may appoint a hearing officer to conduct the hearing, receive
relevant evidence and to submit to the City Manager findings and
recommendations to be considered by the City Manager. The City Manager shall
render his or her 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 Manager receives the findings and
recommendations of the hearing officer. The decision of the City Manager shall
be final. The applicant shall be entitled to notice of the basis for the proposed
action, a copy of the documents upon which the decision was based and the
opportunity to present contrary evidence at the hearing.
4. Notice of the date, time and place of the hearing shall be mailed at least ten (10)
days prior to the date of the hearing, by U.S. Mail, with proof of service attached,
addressed to the address listed on the operator's permit application or the
address given in the notice of appeal, as the case may be.
5. The following rules of evidence shall apply:
a. Oral evidence shall be taken only under oath or affirmation. The hearing
officer shall have authority to administer oaths, and to receive and rule on
admissibility of evidence.
b. Each party shall have the right to call and examine witnesses, to introduce
exhibits, and to cross- examine opposing witnesses who have testified
under direct examination. The hearing officer may call and examine any
witness.
c. Technical rules relating to evidence and witnesses shall not apply to
hearings provided for in this chapter. Any relevant evidence may be
admitted if it is material and is evidence customarily relied upon by
responsible persons in the conduct of their affairs regardless of the
existence of any common law or statutory rule which might make
admission of such evidence improper over objection in civil actions.
Hearsay testimony may be admissible and used for the purpose of
supplementing or explaining any evidence given in direct examination, but
shall not be sufficient in itself to support a finding unless such testimony
would be admissible over objection in civil actions. The rules of privilege
shall be applicable to the extent they are now, or are hereafter permitted in
civil actions. Irrelevant, collateral, undue, and repetitious testimony shall
be excluded.
6. No permit granted herein shall confer any vested right to any person or business
for more than the permit period.
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. Fees required by this chapter shall be in
addition to any required under any other chapter of this Code.
5.50.065 Violation and Penalty.
Page 115
3 -17
A. Violations of this chapter may be enforced pursuant to the provisions of Chapter
1.04 of the Newport Beach Municipal Code.
B. Any massage establishment operated, conducted or maintained contrary to the
provisions of this chapter shall be, and the same is 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.
5.50.070 Severability.
If any section, subsection, sentence, clause or phrase of this chapter 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 chapter. The
City Council hereby declares that it would have passed the ordinance codified in this
chapter, and each and every section, subsection, sentence, clause or phrase not
declared invalid or unconstitutional without regard to whether any portion of this chapter
would be subsequently declared invalid or unconstitutional.
SECTION 2: Chapter 5.64 of the Newport Beach Municipal Code is hereby
deleted in its entirety.
SECTION 3: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
SECTION 4: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses and phrases be declared
unconstitutional.
SECTION 5: The City Council finds the approval of this ordinance is not subject
to the California Environmental Quality Act ( "CEQA ") pursuant to sections 15060(C)(2)
(the activity will not result in a direct or reasonably foreseeable indirect physical change
in the environment) and 15060(c)(3) (the activity is not a project as defined in Section
15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3,
because it has no potential for resulting in physical change to the environment, directly
or indirectly. Alternatively, the City Council finds the approval of this ordinance is not a
project under CEQA Regulation section 15061(b)(3) because it has no potential for
causing a significant effect on the environment.
Page 116
MU
SECTION 6: Except as expressly modified in this ordinance, all other sections,
subsections, terms, clauses and phrases set forth in the Newport Beach Municipal Code
shall.remain unchanged and shall be in full force and effect.
SECTION 7: The Mayor shall sign,and the CifyClerk shall attest to the passage
of this ordinance. The City Clerk shall' cause the ordinance to be published pursuant to
City Charter section 41.4, and it shall be effective thirty (30) days after its adoption.
This Ordinance was introduced at a regular meeting; of the City Council of the
City of Newport Beach held on the day of 2015, and adopted on the
day of , 2015, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS
ABSENT COUNCILMEMBERS
MA
ATTEST:
Edward D. Selich
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
AARO C. HARP, CITY ATTORNEY
U.
Page 117
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ATTACHMENT B
Chapter
MASSAGE ESTABLISHMENTS'
Sections:
5-50.085 - 5.50.005 Findings and Purpose.
5.50.0110 DPfiRitions.
5.50:045 - 5.50.010 Definitions.
5.50.015 State Certification and Operators Permit Required.
5- 50.02 & - 5.50.020 Application for Operators Permit.
5- :58.925 -- 5.50.025 Operators Permit Issuance and Denial.
5:58 .950 -- 5.50.030 Requirements of Operation.
5.58.875- 5.50.035 Changes of Business.
5.50.040 Operator's Permit Exemptions.
5.50.045 Inspection by City Officials and Notices of Violation.
5.50.050 Operators Permit Expiration and Renewal.
5.50.055 Suspension, Revocation, Denial and Appeal
5g 885.50.060 Fees.
5.50.065 Violation and Penalty.
5.50
5.50.070 Severability.
5.50.005 Findings and Purpose.
The City Council finds and declares as follows:
A. The permit requirements and FeStFiGtiGAS--!Fnpesed-by +h;- GhapteF aFe FeaSeRably
necessary to proteGt the health safety and . elfa-Fe -9f t#e- c+to-z°�be-Qty:
3 -20
:. :
A. It is the purpose and intent of this chapter to provide for the orderly regulation of
offices and establishments providing massage therapy services, and to prevent and
discourage the misuse of massage therapy as a front for prostitution and related
activities in violation of state law, all in the interest of the public health, safety, and
welfare, by providing certain minimum building, sanitation, and operation standards for
such businesses, and by requiring certain minimum qualifications for the operators and
practitioners of such businesses. It is the further intent of this chapter to streamline local
massage therapy permitting procedures, while still facilitating and advancing the ethical
practice of massage therapy, by relying upon the uniform statewide regulations enacted
by the Legislature in 2008, 2011 and 2014 as Business and Professions Code sections
4600 et seo., and by restricting the commercial practice of massage in the city to those
Persons duly certified to practice by the California Massage Therapy Council formed
pursuant to those statutes.
B. The restrictions and requirements contained in this chapter reduce the burdens on
the Police Department and permit the deployment of the police personnel such that
more serious crimes may be prevented and FrIGre iMP90aRt laws enfereed.
C. The regulations and restrictions contained in this chapter tend to discourage
massage establishments from degenerating into houses of prostitution and the means
utilized in this chapter bear a reasonable and rational relationship to the goals sought to
be achieved.
5.50.010 Definitions.
Unless the context of the particular provision - of - he seate*t otherwise requires, the
definitions and provisions contained in this section shall govern the construction,
meaning, and application of words and phrases used in this chapter.
"Approved School of Massage" means any school or institution of learning that is
recognized as an "approved school' pursuant to Business and Professions Code
Division 2, Chapter 10.5, as it may be amended.
Pa e 2
3 -21
"California Massage Therapy Council" means the massage therapy organization formed
pursuant to California Business and Professions Code section 4600, and following, as
amended, and referred to as CAMTC herein.
"Certified Massage Business" means any business where the only persons employed or
used by that business to provide massages services have current and valid State
Certifications.
"Certified Massage Technician" means any person holding a current and valid State
Certificate issued by the CAMTC pursuant to California Business and Professions Code
section 4600 and following, as amended, whether as a massage practitioner or
massage therapist, as defined therein.
"Certified Sole Proprietorship" means any massage business where the owner is the
only person employed or used by that business to provide massage services and the
owner has a current and valid unconditional State Certification.
"Chief of Police" means the Chief of Police of the City of Newport Beach, or his /her
designated representative.
"City" means the City of Newport Beach.
"City Council" means the City Council of the City of Newport Beach.
"City Manager" means the City Manager of the City of Newport Beach, or his /her
designated representative.
"Conviction," "convicted" means a plea or verdict of guilty or a conviction following a
plea of nolo contendere.
"Customer area" means areas open to customers of the establishment.
"Manager' means the person(s) designated by the operator of the massage
establishment to act as the representative and agent of the operator in managing day -
to -day operations with the same liabilities and responsibilities. Evidence of management
includes, but is not limited to, evidence that the individual has power to direct or hire and
dismiss employees, control hours of operation, create policy or rules or purchase
supplies.
g4ati
teshRisiaR permit-. A manager may also be an owner.
"Massage" means any method of treating the external parts of the body for remedial,
hygienic, relaxation or any other reason or purpose, whether by means of pressure on,
friction against or stroking, kneading, tapping, pounding, vibrating, rubbing or other
manner of touching external parts of the body with the hands, or with the aid of any
Page 13
3 -22
mechanical or electrical apparatus or appliance with or without supplementary aids such
as rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment or other similar
preparations commonly used in this practice.
"Massage establishment" means any business ceradasted wR,W the E
Beachat a fixed location where aay- person, f{.;,, associatiora- par#raer%;h
•t s •s'TM!m •s_ srn. _ s
•- s. s
_e s e s-
massage- performed for compensation, excluding those locations where massage within a
v e e
"massagepfactitioner nre iRGlUded NVANR this def Rit s•
s s• - s .a only provided on • basis.
"Operator" or "Owner' means any and all persons wMo-have-anewnerehip-intere�e
owners of a massage establishment andthat are responsible for its day -to -day
operations including any of the following persons: the managing responsible
officer /employee a general partner, a limited partner, a shareholder, a sole proprietor,
or any person who has a five (5) percent or greater ownership interest in a massage
establishment whether as an individual corporate entity, limited partner, shareholder or
sole proprietor.
"Operator's Permit" means a permit - means issued by the pem:WPolice Department
upon submission of satisfactory evidence as required that a massage business or sole
proprietorship employs or uses only certified massage therapists or practitioners
possessing valid and current State Certifications and has satisfied all other
requirements pursuant to the provisions of this chapter -Aa- -Gperate- 4„ --:R, age -a
rziassage- establishFAent.
Owner�individkral {s }- where- r�araeap pear-sen- the -City business lie -ense_
"Person" means any individual, or corporation, partnership, association or other group
or combination of individuals acting as an entity.
"Police Department" means the Police Department of the City of Newport Beach
ES_ s e e Mto
ee e:
"State Certification" or "State Certificate" means a valid and current certification properly
issued by CAMTC pursuant to California Business & Professions Code section 4600.
and following as amended.
Page 14
3 -23
For purposes of this chapter the term "employee" shall include independent contractors.
f (paFt),
5.50.015 State Certification and Operator's Permit Required.
NG PGFsefl shaliOn or after May 1, 2015, it shall be unlawful for any individual to practice
massage for compensation within the City unless that individual is a Certified Massage
Technician and further, it shall be unlawful for any massage establishment within the
City to provide massage services or allow massage services to be performed at the
massage establishment unless all individuals performing massage at the massage
establishment are Certified Massage Technicians.
In addition, it shall be unlawful for any person, association, partnership, company or
corporation to operate a massage establishment within the City without first obtaining an
operator's permit pursuant to this chapter, securing
the necessary business license as required by this Code, and complying with Title 29 e#
.
1.992j20 of this Code.
5.50.020 Application for Operator's Permit.
A. —_Any person desiring an operator's permit for a massage establishment shall file a
written application on the required form with the Police Department Community SeFviGes
8f4serCivilian Investigator 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 for an operator's permit
does not authorize operation of a massage establishment unless and until such permit
has been properly grapted.jssued. The application shall contain or be accompanied by
the following information in writing:
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 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, including limited partners. If it is a limited partnership, it
shall furnish a copy of its certificate of limited partnership filed with the Secretary
of State. _If one or more of the partners is a corporation, the provisions of this
subsection pertaining to corporations shall apply.- to that corporation. The
applicant corporation or partnership shall designate one of its officers or general
partners to act as its responsible managing officer. _Such designated persons
Page 15
3 -24
shall complete and sign all application forms required for an individual applicant
under this chapter, but only one application fee shall be charged.
2. 2—.The sfeoise-full and true legal name under which the massage establishment
"will be conducted.
3_3-.---The complete address and all telephone numbers of the massage
establishment.
4.
issage The full and employees OR the -true legal name and
mailing address of the owner or owners of the massage establishment- an44he
name afdfes
tG .
5. A copy of a State Certificate issued to each person who will be praasipa44y is
sha providing massage services at the massage
establishment.
_
._
_.
:.
- e
-. •
Page 16
3 -25
massage-or owners of the massage establishment - will be Iesated her
PfePIDAY•
7. 8— A statement that the business will onlv emolov or use persons with a State
Certificate to provide massaae services. and that failure to comply may result in
the suspension or revocation of the operator's permit.
8. A statement that the applicant will provide written notification of any changes to
the original application within 10 days of the change occurring.
9_ Authorization for the City its agents - —a �- emplayees to seek
ver4geatieninvestigate the truth of the information contained in the application.
9. mash- etheFidentifi cation. Chiet of order
to-discover- the truth ereiR s red - to - -be 6et-#erth-ia-the
applisaiien.
10.44--A statement -yo-- writing and d ated by the applicant that he or she certifies
under penalty of perjury that all information contained in the application is true
and correct.
11.A signed statement that the owner /applicant shall be responsible for the conduct
of all employees or independent contractors working on the premises of the
massage establishment and that failure to comply with any local state or federal
law, or with the provisions of this chapter may result in the revocation of the
operator's permit.
B. In addition to the requirements in section 5.50.020(A) the following information shall
be provided by any owner /applicant who does not have a State Certificate and owns
five (5) percent or more of the massage establishment:
2. Acceptable proof that the applicant is at least eighteen (1 )years of ape:
IN a a a- x e:
:a s e: s '•
-• s t
- al �
.s:
e- a . s
14
: s ee •:
1 a
gee
e •
s -
•a
s
•s •s
a .s. :e :: -
s
I Mal
-
e:
s
a a:
MY WIN P P
Will
e• e I IN
I I I s a
-NOW& ••• •.
Page 17
3 -26
..
3_
Fequested. The Ghief of Poke Ghall, within si)dy (60) days Gf F8G9!Pt Of aR
Full, true
name, and other names used, date of birth and valid and current driver's license
and /or identification card issued by a state or federal governmental agency or
other photographic identification bearing a bona fide seal by a foreign
government:
4. Two (2) photographs to be taken by the Police Department;
5. Current address and all previous residential addresses for eight (8) years
immediately preceding the present address of the applicant;
6. Business, occupation, and employment history for eight (8) years preceding the
date of application;
7. The name and address of any massage business or other like establishment
owned or operated by a person subiect to the background check including but
not limited to history, if any, with any agency, board, city, county, territory, or
state and dates of issuance, denial, restriction, revocation, or suspension, and
the reasons therefor of any individual or business permit; and
8. A complete set of fingerprints taken by the Police Department subject to a fee to
cover actual costs to determine whether the applicant has any of the following:
a. Convictions for any crime involving conduct which requires registration
under California Penal Code section 290 (Sex Offender Registration Act):
b. Convictions of violations of California Penal Code sections 266i
(pandering), 315 (keeping or residing in house of ill- fame), 316 (keeping
disorderly house), 318 (prevailing upon person to visit place for gambling
or prostitution), 647(b) (prostitution). 653.23 (supervision of prostitute);
c. Convictions of any felony offense involving the sale of a controlled
substance specified in section 1104, 11055, 11056, 11057, or 11058 of
the Health and Safety Code;
d. Convictions of crimes designated in Government Code section 51032
(massage — grounds for denial of license), or any crime involving
dishonesty, fraud, deceit, violence or moral turpitude;
e. Injunctions for nuisances under Penal Code section 11225 — 11235 (red
light abatement law):
f. Convictions in any other state of any offense which, if committed or
attempted in this state, would have been punishable as one or more of the
referenced offenses of this subdivision:
g. Convictions for conspiracy or attempt to commit any such offense
described in subsections a -f of this subpart.
C. The Chief of Police or authorized representative shall have up to sixtv (60) days
after the submission of all required information to complete the investigation. The sixty
(60) day period may be extended for up to thirty (30) additional days, if necessary, to
complete the investigation. ,
URless he/she makes any of the following find'Rgs� Upon completion of the investigation,
3 -27
an operator's permit may be issued if the requirements under section 5.50.025 are
satisfied.
4-.
5.50.025 Operator's Permit Issuance and Denial.
A. The Police Department may issue an operator's permit to a Certified Massage
Business that demonstrates all of the following:
1. The applicant has submitted an application in compliance with section 5.50.020:
2. That the operation, as proposed by the applicant, if are iadiidaat permitted,
complies with all applicable laws, including but not limited to, the City's building,
zoning, business license, and health regulations:
3. The massage establishment employs or aRy ef the affiGers OF diFeGt9F uses only
Certified Massage Technicians to perform massage whose certifications are valid
and current and that owners of the GGFPGratien, if the applicant is a GGFpGratienj
OF a paFtneF, ifState Certificates are the same Dersons to whom CAMTC issued
valid and current identification cards:
4. That the applicant 1s a paFtReFShip, y--has not made a material
misrepresentation in the application or with respect to any other document or
information required by the City with respect to the application: and
5. That the background check for any applicantlowner, if authorized by this chapter,
shows that such person direct y engaged or empleyed in the massage
estab NohmeRt has
a. Has not been required to register under the provisions of section 290 of
the California Penal Code;
b. Has not had a conviction in a court of competent jurisdiction within eight
L�Lyears preceding the date ef the application- for any of the crimes
identified in section 5.50.020(B)(7);
c. e. Been s uN^ ^'° Has not had an individual or business permit or
license with any agency, board, city, county, territory, or state denied,
revoked, restricted, or suspended within the last eight (8) years; and
Page 19
KIM
d. Has not been subiect to an iniunction for nuisance under Penal Code
section 11225— 11235 within the last eight (8) years.
B. The Police Department may deny an application for an operator's permit for any of
the following reasons:
1. The applicant made a material misstatement or omission in the application or in a
previous application. If the Police Department finds substantial evidence that an
application contains a knowing or intentional material misstatement or omission,
the Police Department shall deny the application;
2. The applicant violated any provision of this chapter and the permit was previously
suspended or revoked for any violation of this chapter;
3. The applicant violated any provision of this chapter on more than two (2)
occasions provided that the applicant received timely notice of each violation
4. The applicant has been convicted of or pled guilty or no contest to any offense
involving the use of force or violence upon another person, pandering
solicitation, or prostitution;
5. The applicant was convicted of, or pled guilty or no contest to a violation of Penal
Code section 415 as a result of an arrest for violation of Penal Code section
647(b);
6. The applicant has previously held a massage establishment license, massage
practitioner permit or similar permit or license that the City of Newport Beach, the
state. or any other public agency has suspended or revoked or that the permittee
surrendered while under investigation or being prosecuted by a government
entity in a civil, administrative, or criminal proceeding for a violation of local, state
or federal law: or
The applicant any business owned or managed by the applicant while the applicant
owned or managed the business, the applicant's current employer, or the applicant's
former employer during the applicant's employment is or was a named party subject to
a permanent injunction against the conducting or maintaining of a nuisance pursuant to
Se 4h-rough l4-2_35 under Cal. Penal Code sections 11225 through 11235,
or Cal. Health & Safety Code section 11570 et seg., or equivalent offenses under the
laws of the— Ga4ofr4a Penal Gede OF aRy-- 6jmalaF- prekisiarts-o� law - ia—a- jus&dietien
outside the State- o€- Gal #efnia,
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3 -29
Page 113
3 -32
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3 -35
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3 -35
5..50.050 Requirements of Operation.
A. Facilities.
1_Structure._ Massage establishments shall be
located in a zoning district which permits such use. _When a new massage
establishment is constructed, threes sets of plans shall be submitted to the City
and the County Health Care Agency for approval and shall be accompanied by
the appropriate plan check fee.
2_27— 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 the front of the business shall not be
illuminated by strobe or flashing lights._ Each operator and /or on duty manager
shall display the operator's permit in a conspicuous public place in the lobby of
the massage establishment. Each Certified Massage Technician shall displav
identification card in his or her possession while providing massage services for
compensation. The hours of operation must be posted in the front window and
clearly visible from the outside. The operator and /or on duty manager must also
post, on a daily basis in a conspicuous public place in the lobby, the name of the
operator and /or on duty manager as well as any an— datyemplovees or
independent contractors providing massage techniciansservices.
3_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-flo
ma6sage teGhR*E;wan shall offer or perform, any service other than those posted.
4_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 sixty (60) watt white light
bulb and shall be activated at all times while the patron is in such room or
enclosure. No ntrohe flashing lights shall be used. No GGIered lights shall be used
ROF shall a GeYeFiRgS he used which shaRge. the Geier of the pr4maFy I' h}
SGUS ,e-.
5_;} —Bath Facilities. A minimum of one J11toilet and ones 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 handwashhand wash sink. _No
bar soap can be used._ A trash receptacle shall be provided in each toilet room.
Showers may be provided at the operators option.
the same massage I I i I PaFate massage reems shall be pFevided f9F rRal
Page 119
ere _ _ .
6_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 installed in any of
these areas.
1.8— Massage Table. _A massage table shall be pFavided iR eashused for all
massage rGomtherapy, with the exception of "Thai," "Shiatsu," and the- similar
forms of massage shM herapy, which may be provided on this- -a
padded mat on the floor. For all massage therapy where a massage tabled -he
is required pursuant to this subsection, the tables should have a minimum height
of eighteen (18) inches. Two —inch thick foam pads with a maximum width of
fours feet may be used on a massage table and must be covered with durable,
washable plastic or other waterproof material. _Beds, floor mattresses and
waterbeds are not permitted on the premises.
B.— Operations.
1. General Conditions. All massage establishments and individuals providing
massage for compensation shall comply with the following conditions:
a. No person shall massage the genitals or anal region of any patron no
shall an operator or manager of a massage establishment allow or permit
such massage. In addition, no person shall provide massage of female
breasts without the written consent of the person receiving the massage
and a referral from a licensed California health care provider nor shall an
operator or manager of a massage establishment allow or permit such
massage.
b. No person shall, while performing any task or service associated with the
massage establishment, be present in any room with a patron unless the
patron's genitalia and in the case of a female, her breast(s), are fully
covered.
c. No person shall massage any patron unless the patron's genitalia, and in
the case of a female, her breast(s), are fully covered.
2. Equipment._ Each operator and /or on duty manager shall provide and maintain
on the premises adequate equipment for disinfecting and sterilizing instruments
used in massage.
LU
Pa a L20
3 -39
.. .
..
L T
� TT.
3_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_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_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_7-. - Roster. _The owner, operator, or on duty manager of the massage
establishment shall keep a complete and current list of the names and residence
addresses of all massage technicians and employees of the massage
establishment and the name and residence addresses of the manager or
managing employee purported to be principally in charge of the operation of the
massage establishment. This roster shall be kept at and /or on the premises and
be available for inspection by officials charged with enforcement of this chapter.
B_< 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
Pa e L21
MIO7
eom+47enshared use of such coverings shall be permitted and re -use is prohibited
unless adequately cleaned.
9_9 - 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 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 upon demand 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.
Such records shall be kept on the premises of the massage establishment for a
period of two years. 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 any other applicable State or Federal 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.
10.10- Hours of Operation. The owner must advise the City of the business hours
and any changes in hours, in writing, at the time of the application for aan
operator's permit -of the bus44e6s4 ;o irsandanychanges- +n- hedics._ No person
shall - operate -a- massage establishment of- administer --ashall be open and no
massage ifi-an„ massage establishment-eradminister- massage pwsuant to an
s#-premts% massage- perrnitshall be provided between the hours of ten p.m.
(10:00 p.m.) and eight a.m. (8:00 a.m.). A massage begun any time before ten
p.m. (10:00 p.m.) must nevertheless terminate at ten p.m. (10:00 p.m.). All
customers, patrons and visitors shall be excluded from the massage
establishment during these hours and be advised of these hours. The hours of
operation must be displayed in a conspicuous public place in the lobby within the
massage establishment and in the front window clearly visible from the outside.
11.14 -. Dress Code. No employee or independent contractor of a massage
establishment or any other person engaged in the practice of massage for
compensation shall dress in attire that is transparent or see - through or
substantially exposes the person's undergarments. In addition, no employee or
independent contractor of a massage establishment or any other person
engaged in the practice of massage for compensation shall dress in a manner
that exposes the person's breasts, buttocks, or genitals or in a manner that
constitutes a violation of section 314 of the California Penal Code.
12.Advertising. No massage establishment granted aan operator's permit under this
chapter 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 reasonably 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
Page 122
3 -41
would reasonably suggest to a prospective patron that any service is available
other than those services authorized by this chapter.
massage establishment unless there is on file with the City Cle*, iR fUll fome and e#eGt
13.13. PaRGIOGapped Areas. Disabilities. All massage establishments must comply
with all Mate —and Federal and State laws and regulations for
handicappeddisabled customers.
1.
138 PFOVided.
14.150 Doors. _AII fFent, FeGeption, hallway OF fF9Rt exteFie interior doors (except
of a
massage establishment4 shall be unlocked during business hours. All massage
establishments with more than one employee shall keep front exterior doors
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.
15.16. Access. _No person(s) other than Yalid peFmit holders WRder this Ghapteft he
operator, manager, employees, and customers will be allowed beyond the front
lobby, located directly inside the front door entrance during hours of operation.
Any other person(s) found beyond the first interior door leading to the inside of
the business including, but not limited to, hallways, massage rooms,
reception /business offices or lounge area will be in violation of this section.€ntry
17 Discrimination. No massage establishment may discriminate or exclude patrons
on the basis of thea protected class such as race, sex; - color, national origin, ancestry,
religion, physical or mental disability, medical condition, marital status, veteran status,
sex, sexual orientation, age or handicap:
•.
ROY
State GewFt, to have violated aRy of the offenses listed in Sec%OR5.50.025 ..4
PATRON NOTICE TO ALL
COMPLETE THIS MASSAGE F=ST4131 ISHMENI, A ID THE MASSAGE ROOMS DO NOT
PROVIDE lE=GT TO INSPIEGTION 13Y
•.R _ POLICE r _. PRIOR NOTICE.
Page 123
3 -42
ma sage saem, The. be so posted for twelve (12) MOR
V49latiOR of any ef the o#eRS9S set forth above.
:•
.._ ..
5.50.055035 Changes of Business.
A. —_Every massage establishment operator shall report immediately to the Police
Department by way of written notification within ten (10) days 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 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.
B. —_No massage establi&W2neWgggrator`s permit may be sold, transferred or assigned
by a pecmitteepermit holder, or by operation of law, to any other person or persons.
Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall
be deemed to constitute a voluntary surrender of such permit and such permit shall
thereafter be null and void; provided and excepting, however, that if the perraitteepemiit
holder is a partnership and one or more of the partners should die, one or more of the
surviving partners may acquire, by purchase or otherwise, the interest of the deceased
partner or partners without effecting a surrender or termination of such operator's
permit, and in such case, the permit, upon notification to the Chief of Police, shall be
placed in the name of the surviving partners. A massages An operator's
permit issued to a corporation shall be deemed terminated and void when either any
outstanding stock of the corporation is sold, transferred or assigned after the issuance
of aan operator's permit, or any stock authorized but not issued at the time of the
granting of a permit is thereafter issued or sold, transferred or assigned. ISle massage
5.50.060 Fees040 Operator's Permit Exemptions.
.._
Page 124
3 -43
._ .._ .
.,
.._
Page 124
3 -43
A. —_The Feqaife 4eRtsprovisions of this chapter shall have Re appliGatiAR and no effQG
apeR aad shall –not apply to aay –the following classes of
persons de r� follows; State lire a ti
p signal as follows; businesses while engaged
in the performance of their duties:
1. Physicians, surgeons, chiropractors, osteopaths, nurses or any physical
therapists, duly licensed to practice their
respective professions in the State of California and workina within the scone of
their licenses.
Barbers, cosmetologists, estheticians, and manicurists who are duly licensed vesatienal
under the d'FeGt s peWisieplaws ofd the State
massage ed
2. R. Gernmenning on the effeGtiva dat of California while engaging in practices
within the scope of their licenses, except that this provision shall apply solely to
the massaging of the erdinanse sedgy ed OR this chapte , all perm46 a e e beneck,
face, hands and feet, and /or scalp of the customers, and this exception shall not
apply to full body work or full body massage.
3. Hospitals, nursing homes, sanatoriums, or other health facilities duly licensed by
the State of California.
4. Accredited junior colleges and colleges or universities whose coaches and
trainers are acting within the scope of their employment.
5. Trainers of amateur, semi - professional or professional athletes or athletic teams
while engaging in their training responsibilities for and with athletes and trainers
working in coniunction with a specific athletic event such as an outdoor road or
bike race.
5.50.045 Inspection by City Officials and Notices of Violation.
A. The investigating officials of the City shall have the right to enter the premises during
regular business hours prior to the issuance of a permit and subsequently for the
purpose of making reasonable inspections to enforce compliance with this chapter and
with building, fire, electrical, plumbing, and /or health and safety regulations. In the
event an operator's permit has been issued, it may be revoked or suspended in the
manner set forth in this chapter.
B. Whenever City officials make an inspection of a massage establishment and find
that any provision of this chapter has been violated, he or she shall give notice of such
violation by means of an inspection report, administrative citation, or other written
notice. In any such notification, the investigating person shall set forth the specific
violation or violations found and shall notify the holder of the operator's permit that
failure to comply with any notice issued in accordance with the provisions of this chapter
may result in the revocation or suspension of the permit.
Page 125
heldeF will be requiFed, wheFe applicable, to take and pass the thFee hyRdFed (300) heUF
A. Ale PeFFRit issued hn�rn, nderr _crhall he transferable fn any ether
massage teGhnician pem;it will be allowed upon PFior written n9fiGe te the Chie
129"Ge and payFnGRt of the appropriate traRsfeF fee-
B. Permits fnr massage epeFateFs, maRageFs Rd feshnisians
C. The permit holder shall take immediate action to correct violations, and City officials
may re- inspect the business for compliance.
D. The permit holder may be issued a warning that any future violation of this chapter
may result in suspension or revocation of the permit or the City officials may establish a
specific and reasonable period of time for the correction of the violation(s). No time to
correct need be given for health and safety violations or violations of criminal law.
5.50.050 Operator's Permit Expiration and Renewal.
A. An operator's permit shall be for a period of three years provided that the permittees
ae4Ruepermit holder continues to meet the requirements set out in this chapter.
C
B. Applications for the next ensuing operator's permit shall be filed with the Chief of
Police before the expiration of the existing permit._ Temporary permits will not be issued
and renewal applications must be filed no later than sixty (60) days prior to the
expiration of the permit to prevent a lapse of the- -permi .
D.
C_Renewal applications shall require such information as may be required by the Chief
of Police to update the information contained in the original per+Rit application._ The
applicant shall accompany the application for renewal with the appropriate filing fee
established by resolution of the City Council. (Ord 99 " § 3, 19W Ord 97 7 §
.
.. 1
,,
5.50.075055 Suspension, Revocation, Denial and Appeal.
A.— �Fie4atien . Revocation and Suspension of Operator's Permit.
The Chief of Police may refuse to renew aan operators permit or may revoke or
suspend an existing operator's permit on any of the following grounds that the applicant
er-:
Pa a J26
3 -45
�.
..
heldeF will be requiFed, wheFe applicable, to take and pass the thFee hyRdFed (300) heUF
A. Ale PeFFRit issued hn�rn, nderr _crhall he transferable fn any ether
massage teGhnician pem;it will be allowed upon PFior written n9fiGe te the Chie
129"Ge and payFnGRt of the appropriate traRsfeF fee-
B. Permits fnr massage epeFateFs, maRageFs Rd feshnisians
C. The permit holder shall take immediate action to correct violations, and City officials
may re- inspect the business for compliance.
D. The permit holder may be issued a warning that any future violation of this chapter
may result in suspension or revocation of the permit or the City officials may establish a
specific and reasonable period of time for the correction of the violation(s). No time to
correct need be given for health and safety violations or violations of criminal law.
5.50.050 Operator's Permit Expiration and Renewal.
A. An operator's permit shall be for a period of three years provided that the permittees
ae4Ruepermit holder continues to meet the requirements set out in this chapter.
C
B. Applications for the next ensuing operator's permit shall be filed with the Chief of
Police before the expiration of the existing permit._ Temporary permits will not be issued
and renewal applications must be filed no later than sixty (60) days prior to the
expiration of the permit to prevent a lapse of the- -permi .
D.
C_Renewal applications shall require such information as may be required by the Chief
of Police to update the information contained in the original per+Rit application._ The
applicant shall accompany the application for renewal with the appropriate filing fee
established by resolution of the City Council. (Ord 99 " § 3, 19W Ord 97 7 §
.
.. 1
,,
5.50.075055 Suspension, Revocation, Denial and Appeal.
A.— �Fie4atien . Revocation and Suspension of Operator's Permit.
The Chief of Police may refuse to renew aan operators permit or may revoke or
suspend an existing operator's permit on any of the following grounds that the applicant
er-:
Pa a J26
3 -45
1. The permit holder has failed to camply made a material misrepresentation on
the application for an operator's permit senditieasor renewal;
2. The permit holder has engaged in conduct or etheF operated a
massage establishment in a manner which violates any of the provisions of this
chapter., any conditions of the operator's permit, or any of the laws which would
have been grounds for denial of the permit;
3. The permit holder employs or uses any person who is not a Certified Massage
Technician to perform massage services;
4. Violations of this chapter or of California Business and Professions Code section
4600 et seq. have been committed by the massage establishment or by anyone
performing massage services on behalf of the massage establishment; or
5. The permit holder has engaged in fraud, misrepresentation, or false statements
in obtaining or maintaining an operator's permit.
B. If a suspended permit lapses during the suspension period, a new application
mustcannot be made atuntil the end of the suspension period. In any SLIGh GaGe the
i3ppliGaRt OF PGR:Rit heldeF shall have the right te appeal tO the City sil iR he tirRe
and manneF set foFth in this seGtiGR:
@. Re n;#k;R andSaspck,siea
C. The term of OpeFater s °^•^,d'
..
last no more than sixty (60)
rnes
.... .
....
IMEMM
...
D.--Notice.
a-. —
1. 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
Page L27
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, and the right of the applicant or permit holder to appeal the decision to
the City GeunGil, and theManager. The decision will be final if no appeal is filed
within the time permitted.
E.--Appeal.
1_� —The right to appeal to the City CeunGWanager shall terminate upon the
expiration of fifteen (15) days effrom the date of mailing or service of the notice.
The notice of appeal is to be sent to the Police Department of the City of Newport
Beach.
2_2-1n the event an appeal is timely filed, the suspension or revocation shall not
be effective until a final decision has been rendered by the City GOuRrA.Manager
or his or her designee. If no appeal is filed, the suspension or revocation shall
become effective upon expiration of the period for filing appeals.
3_1 —The City CeanGil efthe GityManager may preside over the hearing on appeal
or, in the alternative, the City Manager may appoint a hearing officer to conduct
the hearing, receive relevant evidence and to submit to the City GeuasitManager
findings and recommendations to be considered by the City Council Manager.
The City GeupGWanager shall render 4shis or her 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
GeUAsi4Manager receives the findings and recommendations of the hearing
officer. The decision of the City GeuasilManager shall be final._ The applicant
shall be entitled to notice of the basis for the proposed action, a copy of the
documents upon which the decision was based and the opportunity to present
contrary evidence at the hearing. if the dOR'al 06 based upen failing the test, the
nat -be entitled to a copy ef the test-.
4_4— Notice of the date, time and place of the hearing shall be mailed at least ten
10 days prior to the date of the hearing, by U.S. Mail, with proof of service
attached, addressed to the address listed on the Fnassagaoperator's permit
application, massage t8GhRioian appliGation, or, the address given in the notice of
appeal, as the case may be.
5_5- -The following rules apAof evidence shall apply:
a. a. Oral evidence shall be taken only under oath or affirmation. The
hearing officer shall have authority to administer oaths, and to receive and
rule on admissibility of evidence.
b_ b3 Each party shall have the right to call and examine wltaesswitnesses,
to introduce exhibits, and to cross - examine opposing witnesses who have
testified under direct examination. _The hearing officer may call and
examine any witness.
c_G— Technical rules relating to evidence and witnesses shall not apply to
hearings provided for in this chapter. _Any relevant evidence may be
Page 128
3 -47
admitted if it is material and is evidence customarily relied upon by
responsible persons in the conduct of their affairs regardless of the
existence of any common law or statutory rule which might make
admission of such evidence improper over objection in civil actions.
Hearsay testimony may be admissible and used for the purpose of
supplementing or explaining any evidence given in direct examination, but
shall not be sufficient in itself to support a finding unless such testimony
would be admissible over objection in civil actions. The rules of privilege
shall be applicable to the extent they are now, or are hereafter permitted in
civil actions. _Irrelevant, collateral, undue, and repetitious testimony shall
be excluded.
6_6-.—No permit granted herein shall confer any vested right to any person or
business for more than the permit period. All -- massage - eperaters;-manage�
is-GhapteF shall Gemply with - the - provisions of -th +s shaptef
a&4#ey -ma" be eRded h^F&aft„< 'nom. -96 2T § 1 (paF*t)
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. T
health se^:+ces4ee- „schedule prescr4b+ng- rwal -fee to be paid by thn crater of Bash
massae-e6tablYJHtt ,,-$H6t� -fees to ho id dir, -c� � QFaRge 4. aa4h
g Tc'rvc� "Y iivvT �' °'rrgv —T °Q'
B t fsr said seWiGes ate.4e
th+s e#aapter Fees required by this chapter shall be in addition to any required under any
other chapter of this Code.UO
5.50.065 Violation and Penalty.
A.— _Violations of this chapter may be enforced pursuant to the provisions of Chapter
1,941.04 of the Newport Beach Municipal Code.
B. —_Any massage establishment operated, conducted or maintained contrary to the
provisions of this chapter shall be, and the same is 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. '^ra 96 27 a ' 9rd. 94 54§-1
5.50.085070 Severability.
If any section, subsection, sentence, clause or phrase of this chapter 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 chapter. The
City Council hereby declares that it would have passed the ordinance codified in this
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chapter, and each and every section, subsection, sentence, clause or phrase not
declared invalid or unconstitutional without regard to whether any portion of this chapter
would be subsequently declared invalid or unconstitutional.
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CIL