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HomeMy WebLinkAbout03 - Massage EstablishmentsCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Ei� Agenda Item No. 3 November 12, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Police Department John Klein, Chief of Police, 644 -3701, jklein @nbpd @.org Ron Vallercamp, Sergeant, 644 -3755, rvallercamp @nbpd.org SUBJECT: AMENDING SECTION 5.50.050 OF MUNICIPAL CODE REGARDING MASSAGE ESTABLISHMENTS — REQUIREMENTS OF OPERATION ISSUE: Should the City Council 'amend the requirements for massage operators under Section 5.50.050 A(6) to allow couples massages in the resort hotel spa setting? RECOMMENDATION: Approve an ordinance amending Section 5.50.050 of the Municipal Code and pass to second reading on November 25, 2008. DISCUSSION: Background: Many of the City's hotels operate a spa with massage services located within the resort setting. Often massage services are offered to couples in the spa rooms and the resort's rooms. The City Attorney's Office has recommended an addendum to the current City Municipal Code, which would authorize City licensed massage technicians to perform what is commonly referred to as "couple's massage" in resort hotels with permitted spa facilities. The current City of Newport Beach Municipal Code does not authorize the practice of "couple's massages." Section 5.50.505 A (6) states: Separate Rooms. If male and female persons are to be treated simultaneously at the same massage establishment separate massage rooms shall be provided for male and female patrons. AMENDING SECTION 5.50.050 OF MUNICIPAL CODE REGARDING MASSAGE ESTABLISHMENTS — REQUIREMENT OF OPERATION November 12, 2008 Page 2 NBMC Section 20.87.020 reads: Massage Establishment as an Accessory Use - A massage establishment which is operated as an accessory use in conjunction with an approved health club, athletic club, gym or hotel which is or will be operated pursuant to an approved use permit, or in conjunction with a medical office or chiropractic office which is regulated by State law, shall be permitted in any district where the primary use is permitted. For the purpose of this section, an accessory use shall mean a use which is not more than twenty-five (25) percent of the floor area of the related health or athletic activities of the primary use. (Ord. 97 -09 Exh. A (part), 1997). The next Municipal Code Section, 20.87.025, defines the Massage Establishment as an "Independent" Use: A massage establishment which operates as an independent use, shall be permitted in the M -1 -A District, RMC, RSC and APF Districts, commercial areas of PC Districts and commercial areas of the SP -4 (Newport Shores Specific Plan), SP -5 (Mariner's Mile Specific Plan) and SP -9 (Old Newport Boulevard Specific Plan) Districts, subject to the securing of a use permit approved by the Planning Director in each case and provided further that such establishment conforms to the following: The code then goes on to describe the various zoning regulations regarding location requirements (near schools, public parks, playgrounds, etc.). It has been the Police Department's experience over the years that the potential for abuse has existed at the independent facility, but does not create problems when offered as part of spa services in the City's approved resort hotels, where massage is secondary to the main business use. As written by the City Attorney's Office, the Police Department has no opposition to the addition of subsection 6 (A) under NBMC Section 5.50.505 A (6), in hotel facilities in which massage is an "accessory" to the primary function of the establishment and as such are exempt from the "separate rooms" provision. Prepared by: Z,)azee�� 0/ 0�� Ron Vallercamp Sergeant, Detective Division Attachments: Ordinance Submitted by: ORDINANCE NO. 2008- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING SECTION 5.50.050 OF CHAPTER 5.50 OF TITLE 5 OF THE NEWPORT BEACH MUNICIPAL CODE, PERTAINING TO BUSINESS LICENSES AND REGULATION OF MASSAGE ESTABLISHMENTS The City Council of the City of Newport Beach does hereby ordain that certain Newport Beach Municipal Code section is amended to read, in full, as follows: SECTION 1: Section 5.50.050 of Chapter 5.50 is amended to read as follows: 5.50.050 Requirements of Operation. A. Facilities. 1. Structure. Massage shall be carried on in a structure which is located in a zoning district which permits such use. When a new massage establishment is constructed, three 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. 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 on duty massage technicians. 3. Services List. Each operator shall post and maintain a list of services available and the cost of such services in a conspicuous public place within the premises. No operator or responsible managing employee shall permit, and no massage technician shall offer or perform, any service other than those posted. 4. Lighting. Each operator shall provide in each room where massage is given sufficient lighting and ventilation that complies with the Uniform Building Code. The lighting in each massage room shall be at least one 1 sixty (60) watt white light bulb and shall be activated at all times while the patron is in such room or enclosure. No strobe flashing lights shall be used. No colored lights shall be used nor shall any coverings be used which change the color of the primary light source. 5. Bath Facilities. A minimum of one toilet and one separate wash basin shall be provided for patrons in each massage establishment, which basin shall provide soap or detergent and hot running water at all times and shall be located within close proximity to the area devoted to the performing of massage services._ A permanently installed soap dispenser, filled with soap, and a single service towel dispenser shall be provided at the restroom handwash sink. No bar soap can be used. A trash receptacle shall be provided in each toilet room. Showers may be provided at the operator's option. 6. Separate Rooms. If male and female patrons are to be treated simultaneously at the same massage establishment separate massage rooms shall be provided for male and female patrons. This subsection 6(a) shall not apply if the establishment is operated as an accessory use within, and as part of spa services offered in a hotel as authorized under Section 20.87.020 of the Newport Beach Municipal Code. 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. 8. Massage Table. A massage table shall be provided in each massage room and the massage shall be performed on this massage table. The tables should have a minimum height of eighteen (18) inches. Two -inch thick foam pads with a maximum width of four 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 not permitted on the premises. B. Operations. 1. 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. 2. Inspections. The operator and /or on duty manager consents to the inspection of the massage establishment by the City's Building and Safety, Fire Department and Police Department and the County Health 2 Department for the purpose of determining that the provisions of this chapter or other applicable laws or regulations are met. a. The City's Building and Safety, Fire Department, Police Department and the County Health Department may, from time to time, make an inspection of each massage establishment for the purpose of determining that the provisions of this chapter, State law or other applicable laws or regulations are met. Routine inspections shall not occur more than twice a year, unless violations are found or complaints are received. Criminal investigations may be conducted as directed by the Chief of Police. The Police Department may inspect the occupied massage rooms for the purpose of determining that the provisions of this chapter are met upon occurrence of any of the conditions described in Section 5.50.050(B)(18) which would require the posting of the Notice To All Patrons. During an inspection, the Police Department may verify the identity of all on -duty employees. b. Inspections of the massage establishment shall be conducted during business hours. C. A person who operates a massage establishment or his or her agent, servant or employee commits an offense if he or she refuses to permit a lawful inspection of the premises by a representative of the Police Department at anytime it is occupied or open for business. 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. r, 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 common 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, in writing, at the time of the application for a permit of the business hours and any changes in hours. No person shall operate a massage establishment or administer a F1 massage in any massage establishment or administer a massage pursuant to an off premises massage permit between the hours of ten p.m. and eight a.m. A massage begun any time before ten p.m. must nevertheless terminate at ten 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. Advertising. No massage establishment granted a 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. 12. Insurance. No person shall engage in, conduct or carry on the business of a massage establishment unless there is on file with the City Clerk, in full force and effect at all times, documents issued by an insurance company authorized to do business in the State of California evidencing that the permittee is insured under a liability insurance policy providing minimum coverage of one hundred thousand dollars ($100,000.00) for injury or death to one person arising out of the operation of any massage establishment and the administration of a massage. 13. Handicapped Areas. All massage establishments must comply with all State and Federal laws and regulations for handicapped customers. 14. Compliance. Proof of compliance with all applicable provisions of this Code shall be provided. 15. Doors. All front, reception, hallway or front exterior doors (except back or rear exterior doors used for employee entrance to and exit from the massage establishment) shall be unlocked during business hours. No massage may be given within any cubicle, room, booth or any area within a massage establishment which is fitted with a door capable of being locked, unless the only door is an exterior door. 16. Access. No person(s) other than valid permit holders under this chapter 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 5 business including, but not limited to, hallways, massage rooms, reception /business offices or lounge area will be in violation of this section. Entry doors to any room shall not be obstructed by any means. 17. Discrimination. No massage establishment may discriminate or exclude patrons on the basis of the race, sex, religion, age or handicap. 18. Notices. The Chief of Police may require that the following notice be posted in the event that any employee of the massage establishment or any person who has been aided and abetted by an employee of the massage establishment has been found, after full hearing by administrative proceeding or State Court, to have violated any of the offenses listed in Section 5.50.025 or 5.50.040: NOTICE TO ALL PATRONS THIS MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION BY THE NEWPORT BEACH POLICE DEPARTMENT WITHOUT PRIOR NOTICE. a. The notice set forth above shall be prepared and issued by the Chief of Police. b. The notices shall be conspicuously posted in a location within the massage establishment that are easily visible to any person entering the premises and in each massage room. The notice shall be so posted for twelve (12) months following the violation of any of the offenses set forth above. C. The requirement for posting the notice described in this section is cumulative and in addition to all other remedies, violations and penalties set forth in this chapter, or in the ordinances, laws, rules or regulations of the City of Newport Beach, County of Orange and the State of California. SECTION 2: 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, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the same to be published once in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. R SECTION 4: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the day of 2008, and adopted on the _ day of 2008, by the following vote, to wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS MAYOR ATTEST: CITY CLERK F: u s ers \cat \sha red\Ord inance15.50.050mas sageRegOfOperations.doc 7