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HomeMy WebLinkAbout2015-2 - Amending Newport Beach Municipal Code Chapter 5.50 Regulating Massage Establishments and Repealing Chapter 5.64 Regulating Holistic Health PractitionersORDINANCE NO. 2015 -2 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no longer necessary in light of amendments to Chapter 5.50 of the NBMC, and thus it is recommended that Chapter 5.64 be repealed; and WHEREAS, this ordinance is enacted pursuant to California Government Code sections 51030 -51934 and Business and Professions Code sections 4600 et seq.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 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 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 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 Page 13 dismiss employees, control hours of operation, create policy or rules or purchase supplies. 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 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. Page 14 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. 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 2661 (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 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: Page 17 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 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. 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) waft 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 Page 19 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. 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 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 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 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. Page 111 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 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 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. 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 Page 112 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. 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 operator's 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. Page 113 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. 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. 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. Page 115 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. 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, Page 116 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. 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 City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance to be published pursuant to City Charter section 414, 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 10th day of March, 2015, and adopted on the 24th day of March, 2015, by the following vote, to -wit: AYES, COUNCILMEMBERS Peotter, Curry, Duffield, Muldoon Dixon, Mayor Selich NOES, COUNCILMEMBERS None ABSENT COUNCILMEMBERS Petros ATTEST: MM� d klt j LEILANI I. BROWjN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE AARO C. HARP, CITY ATTORNEY U Page 117 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2015 -2 was duly and regularly introduced on the 10th day of March, 2015, and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 24th day of March, 2015, and that the same was so passed and adopted by the following vote, to wit: AYES: Council Member Peotter, Council Member Curry, Council Member Duffield, Council Member Muldoon, Mayor Pro Tern Dixon, Mayor Selich NAYS: None ABSENT: Council Member Petros IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 25th day of March, 2015. `� Ni FO�9 STATE OF CALIFORNIA } COUNTY OF ORANGE } CITY OF NEWPORT BEACH } Ajm� t-C/. �� City Clerk City of Newport Beach, California (Seal) CERTIFICATE OF PUBLICATION ss. I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2015 -2 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following dates: Introduced Ordinance: March 14, 2015 Adopted Ordinance: March 28, 2015 �p In witness whereof, I have hereunto subscribed my name this It day of 2015. 1 A� EALi FOX.. City Clerk City of Newport Beach, California (Seal)