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HomeMy WebLinkAboutOrdinance 1927 (Massage Establishments)CLERK'S CERTIFICATE I, ESTHER C. BEIRNE, Clerk of the City of San Rafael, and Ex -Officio Clerk of the Council of said City, do hereby certify that the foregoing: ORDINANCE NO. 1927 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AMENDING SAN RAFAEL MUNICIPAL CODE, CHAPTER 10.90 RELATING TO MASSAGE THERAPY PRACTITIONERS AND ESTABLISHMENTS is a true and correct copy of an Ordinance of said City, and was introduced ata REGULAR meeting of the City Council of the City of San Rafael, held on the 1St day of December, 2014; a SUMMARY of Ordinance No. 1927 was published as required by City Charter in the MARIN INDEPENDENT JOURNAL, a newspaper published in the City of San Rafael, and passed and adopted as an Ordinance of said City at a REGULAR meeting of the City Council of said City, held on the 15th day of December, 2014, by the following vote, to wit: AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None WITNESS my hand and the official Seal of the City of San Rafael this 24th day of December 2014 ESTHER C. BEIRNE City Clerk ORDINANCE NO. 1927 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AMENDING SAN RAFAEL MUNICIPAL CODE CHAPTER 10.90 RELATING TO MASSAGE THERAPY PRACTITIONERS AND ESTABLISHMENTS WHEREAS, there is substantial research that indicates that the skillful practice of massage can provide many health benefits including relief of pain from disease, injury and other sources, and that massage can be a valuable component of a wellness program; and t-- WHEREAS, in 2008 by Senate Bill 731 ("SB 731'"}, the Legislature added new Chapter 10.5 (Sections 4600 et seq.) to the California Business and Professions Code. entitled "Massage Therapists," which provides for the formation of a nonprofit "'Massage Therapy Organization" to oversee a state -sanctioned program of certification for massage therapy practitioners; and V) WHEREAS, SB 731 established a scheme for a voluntary certification process for persons wishing to practice massage therapy in California, with the intention of enabling persons n C� so certified to practice massage therapy in any city within the State. without being required to C, - obtain a local permit to practice; and WHEREAS, SB 731 included a sunset clause, expiring on January 1, 2015, to allow the state to review the law and its impacts; and WHEREAS, the "California Massage Therapy Council" was formed to administer the laws enacted by SB 731, including the issuance of certifications to qualified massage practitioners; and WHEREAS, in 2010, the City Council adopted San Rafael Municipal Code Chapter 10.90, establishing g regulations governing massage therapy businesses and practitioners in Cl compliance with SB 731, with the intention of reducing City involvement in local massage therapy g licensing, while still encouraging and facilitating the ethical practice of massage therapy L_ Zn and complying with State law, by relying upon the uniform statewide regulations enacted by SB 731, and restricting the commercial practice of massage in the City to those persons duly certified to practice by the California Massage Therapy Council; and WHEREAS, in September 2014, the Legislature adopted Assembly Bill 1147 ("AB 1147'"j, amending the laws enacted by SB 731, which will go into effect on January 1, 2015; and C, WHEREAS, the City Council wishes to amend San Rafael Municipal Code Chapter 10.90 as a result of the enactment of AB 1147 as well as clean up, modify and clarify the Ordinance provisions related to registration, inspection, operational standards and revocation process; and WHEREAS, this ordinance is enacted pursuant to Government Code Sections 51030- 51034 and Business and Professions Code Sections 4600 et seq., as amended by AB 1147; 1 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES HEREBY ORDAIN AS FOLLOWS: DIVISION 1: San Rafael Municipal Code Chapter 10.90 entitled "Massage Therapy" is hereby amended to read in its entirety as follows: 10.90.010 Purpose and intent. It is the purpose and intent of this chapter to provide for the orderly regulation of offices and L 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 interests 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 stream -line local massage therapy permitting procedures, while still facilitating and advancing the ethical practice of relying massage therapy, by upon the uniform statewide -1 Zn regulations enacted by the Legislature in 2008 as Business and Professions Code sections 4600 et C� seq., known as the Massage Therapy Act, and by e massag restricting the commercial practice of I L, in the city to those persons duly certified to practice by the California Massage Therapy Council formed pursuant to those statutes. 10.90.020 Definitions. For the purpose of this chapter, unless the context clearly requires a different meaning, the words, terms, and phrases set forth in this section shall have the meanings given them in this section: A. "California Massage Therapy Council" means the Massage Therapy Organization formed pursuant to the Massage Therapy Act. B. "Certified massage establishment" means a massage establishment, including, but not limited to, a sole proprietorship, where each massage establishment owner and each person L_ employed or retained to practice massage therapy for compensation as defined in subsection C, 1.0,90.050(B) is a certified massage practitioner. L, C. "Certified massage establishment certificate" means the city -issued certificate required by this chapter to operate a certified massage establishment. D. "Certified massage practitioner" means any individual certified by the California Massage t:1 Z:) Therapy Council as a Certified Massage Practitioner or as a Certified Massage Therapist pursuant to the Massage Therapy Act. 2 E. "Compensation" means the payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value. C� C� F. "Inspector" means the person or persons designated by the permit authority to conduct any inspections required or permitted under this chapter, G. "Massage," "massage therapy," and/or "bodywork" for purposes of this chapter are used interchangeably and shall mean the skillful application of touch, including but not limited to, pressure, stroking, kneading, compression on or movement of the external surfaces of the body by a practitioner to produce increased awareness, relaxation, pain relief, injury rehabilitation, or neuromuscular reeducation. H. "Massage establishment" shall include the term "massage and/or bodywork office or L, establishment", and means an business or establishment that offers massage therapy in y t:� exchancre for compensation., whether at a fixed place of business or at a location designated by the patron. Any business or establishment that offers any combination of massage therapy Z-1 and bath facilities including, but not limited to, showers, baths, wet and dry heat rooms, pools and hot tubs, shall be deemed a massage establishment under this chapter. 1, "Massage establishment owner" or "owner of a massage establishment" shall mean and include any of the following persons: I , The sole proprietor of a sole proprietorship operating a massage establishment, 1. Any general partner of a general or limited partnership that owns a massage establishment. 3. Any person who has a ten (10) percent or greater ownership interest in a corporation that owns a massage establishment. 4. Any person who is a member of a limited liability company that owns a massage establishment, 5. All owners of any other type of business association that owns a massage establishment. J. "Operator permit" means the permit required by this chapter to operate a massage establishment that does not qualify as a certified massage establishment. C7 K. "Operator" or "massage establishment operator" means any and all owners of a massage establishment. L. "Outcall massage service" means the engaging in or carrying on of massage therapy for Z-- engaging L, compensation at a location other than a massage establishment that has been permitted pursuant to this chapter. M. "Patron" means an individual on the premises of a massage establishment for the purpose of receiving massage therapy. N. "Permit authority" means the chief of police or his or her designee charged with the administration of this chapter. O. "Person" means any individual, firm, association, partnership, corporation, joint venture, limited liability company, or combination of individuals. P. "Reception and waiting area" means an area immediately inside the main entry door of the massage establishment dedicated to the reception and waiting of patrons of the massage establishment and visitors, and which is not a massage therapy room or otherwise used for the provision of massage therapy services. Q. "Sole proprietorship" means a massage establishment where the owner owns 100 percent of the business, is the only person who provides massage services for compensation for that business pursuant to a valid and active California Massage Therapy Council certificate, and has no other employees or independent contractors. R. "Visitor" means any individual not retained or employed by the massage establishment and not receiving or waiting to receive massage therapy services, but excluding law enforcement personnel or governmental officials performing governmental business. 10.90.030 Certification by California Massage Therapy Council required for practitioners. It shall be unlawful for any individual to practice massage therapy for compensation within the city unless that individual is currently certified as a certified massage practitioner as defined in section 10.90.020. 10.90.040 (Reserved.) 10.90.050 Operation of massage establishments—Certified massage establishment certificate or operator permit required. A. It shall be unlawful for any person or persons to operate a massage establishment within the city without first obtaining a certified massage establishment certificate or an operator permit pursuant to the requirements of this chapter. B. It shall be unlawful for any massage establishment operator within the city to employ or retain any person to practice massage therapy for compensation, or to allow any person to perform massage therapy for compensation on the premises of a massage establishment, unless that person is a certified massage practitioner. For purposes of this chapter. a massage establishment operator "employs or retains" a person to practice massage therapy for compensation when: 1. That person is a directly paid employee of the massage establishment; or 2. That person's association with a massage establishment is that of an independent contractor who receives compensation for massage therapy provided to patrons of the massage establishment; or 4 3. That person receives a referral of patrons from the massage establishment and, at any time before or after the referral, arranges in any way for compensation to flow to the massage establishment operator (regardless of whether the parties involved acknowledge that compensation is flowing in exchange for the referral, or whether such parties record such compensation in their financial records). C. It shall be unlawful for an massage establishment operator within the city to employ or retain any person to practice massage therapy for compensation, or to allow any person to perform massage therapy for compensation on the premises of a massage establishment unless and until that person is listed on the certified massage establishment certificate required by Section 10.90.060 of this chapter, or the operator permit required by Section 10.90.070 of this chapter. 10.90.060 Operation of certified massage establishment—Certificate required. No certified massage establishment shall operate within the city without first obtaining a certified massage establishment certificate under this section. A. Application for Certified Massage Establishment Certificate. All owners of the certified massage establishment, or their duly authorized agent, shall file an application for a certified massage establishment certificate for the massage establishment, on a form provided by the permit authority. For purposes of this section, the "applicant" for the certified massage establishment certificate shall refer to and include each and every owner of the massage establishment. The application shall include the following information: 1. The name, address, and telephone number of the massage establishment. 2. The name, residence address and telephone number, and business address and telephone number of the massage establishment owner(s) applying for the certified massage establishment certificate. 3. The form of business under which the applicant will be conducting the massage establishment, i.e., corporation, general or limited partnership, limited liability company, or other form. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation, together with the names and residence addresses of each of its officers, directors, and each shareholder holding more than ten percent (10%) of the stock of the corporation. If the applicant is a general or limited partnership, the application shall set forth the name and residence address of each of the partners, including limited partners. If one (1) or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant shall apply. If the applicant is a limited liability company, the application shall set forth the name and residence address of each of the members. If one (1) or more of the members is a partnership, limited liability company, or corporation, the provisions of this section 5 pertaining to a partnership, limited liability company, or corporate applicant shall apply, as applicable. 4. The name and address of the owner of the real property upon, in, or from which the certified massage establishment is to be operated. In the event the applicant is not the le -al owner of the property, the application shall be accompanied by a copy of any written lease between the applicant and the property owner authorizino, use of the premises for a massage establishment, or, alternatively, if there is no written lease, then a written, notarized acknowledgment from the property owner that the property owner has been advised that a massage establishment will be operated by the applicant upon, in, of from the property owner's property. 5. A description of the proposed massage establishment, including the type of treatments to be administered. 6. The name of each person that the massage establishment employs or retains to perform tn massage therapy for compensation, whether on or off the massage establishment In premises. 7. For each person that the massage establishment does or will employ or retain to perform massage therapy for compensation, whether on or off the massage establishment premises, a copy of that person's current certification from the California Massacre Therapy Council as a certified massage practitioner or as a certified massage therapist, and a copy of that person's current California Massage Therapy Council -issued identification card. 8. For each owner of the certified massage establishment, a copy of that person's current certification from the California Massage Therapy Council as a certified massage Zn practitioner or as a certified massage therapist and a copy of that person's current California Massage Therapy Council -issued identification card. B. Application Fee. An application for a certified massage establishment certificate shall be accompanied by a fee as established by the City's Master Fee Schedule. C. Massage Establishment Facilities and Operations—Requirements for Certified Massage Establishment. A certified massage establishment shall comply with the requirements of ?I section 10.90.090, with the following exceptions: 1. Sole Proprietorship. The provisions of subsections 10.90.090(A)(2) and 10.90.090(B)(1)—(3) shall not apply to a certified massage establishment which is a sole C� proprietorship, even if that sole proprietorship is located in a suite of offices with other businesses. 2. Home Occupation, Where a certified massage establishment is a home occupation, as defined in — section 14,03.030 of this code, and the operator has complied with the provisions of section 14.16.220 of this code pertaining, to home occupations, the 0 provisions of subsections 10.90.090(A)(2) and 10.90.090(B)(1)—(3) and (B)(5) shall not apply, and the portions of the residence subject to the requirements of subsections 10.90.090(B) and (C) shall be only those portions that are used at any time by the patron of the massage establishment. D. Certified Massage Establishment Certificate—Issuance. The permit authority shall grant a certified massage establishment certificate to an applicant who has satisfied the requirements of this section and all other applicable laws, including, but not limited to, the city's building, zoning, and health regulations. The certificate shall include, but not be limited to, the name of the massage establishment, the address of the massage establishment, the names of the owner or owners of the massage establishment, the date of issuance of the certificate, the date of expiration of the certificate, the certificate number, a listing of the certified massage practitioners registered and authorized to perform massages for the massage establishment, and a listing of any other persons employed or retained to work in any other capacity on the premises. E. Notice to Property Owner. Where the applicant is not the record owner, as shown on the latest county assessment roll, of the property upon, in, or from which the certified massage establishment is to be operated, then upon issuance of a certified massage establishment certificate, the permit authority may send a written notice to the property owner advising of the issuance of the certificate and of the regulations applicable to the massage establishment and the property pursuant to this chapter. Any other notices sent to the applicant pursuant to this chapter at any time before or after issuance of the certified massage establishment certificate may also be sent to the property owner. F. Notice of Denial—Appeal—Judicial Review. If an application for a certified massage establishment certificate is denied, the permit authority shall serve on the applicant, in the manner provided in -section 1.08.060 of this code, a written notice of denial which shall specify the grounds for the denial. The applicant shall have the right to appeal from a decision by the permit authority to deny a certificate application by filing with the city clerk a written notice of appeal, specifying the grounds for such appeal, within fifteen (15) days after the decision has been served on the applicant. Such appeal shall be heard by a hearing officer appointed by the permit authority, upon not less than fifteen (15) days written notice to the applicant. The designated hearing officer shall consider all relevant evidence at the hearing, may continue the hearing for good cause, and may require such legal briefing as may be required to address any issues raised by the appeal. Within a reasonable time, but not more than thirty (30) days following the conclusion of the hearing, the hearing officer shall issue a written decision as to whether the application shall be granted or denied, supported by factual In findings and determinations referenced by supporting evidence. The written decision shall be served on the applicant as provided in Code of Civil Procedure Section 1094.6, with a copy served on the permit authority. The written decision of the hearing officer shall be final and shall be subject to judicial review according to the provisions and time limits set forth in Code of Civil Procedure Section 1094.6. 7 G. Display of Certificate. Each holder of a certified massage establishment certificate shall display that certificate in an open and conspicuous place on the premises visible from the main entry door and/or reception and waiting area of the massage establishment. H. Term, A certified massage establishment certificate issued pursuant to the terms of this chapter shall be valid for a term of one (1) year from the date of issuance, and, unless suspended or revoked, must be renewed by the massage establishment operator annually so t' long as the massage establishment is operating within the city. I I. Requirement to Amend Certified Massage Establishment Application; Amendment Fee. In addition to the requirements of sections 10.90. 100 and 10.90. 110, whenever the information provided in the application for certified massage establishment certificate on file with the city changes, for example by a change in employees, the operator shall, within ten (10) business I "n days after such change, file with the permit authority an application for amendment to the certified massage establishment to reflect such change. An application for an amendment to a certified massage establishment certificate shall be accompanied by a fee as established by ?n the City's Master Fee Schedule. It shall be a violation of Section 10.90.050(C) of this chapter for the operator to allow any person to perform massage therapy for compensation on the premises of a massage establishment unless and until an amended certified massage establishment certificate has been issued by the permit authority identifying that person as employed or retained by the massage establishment to practice massage therapy for compensation. J. Violations --Operator Responsibility; Suspension or Revocation of Certified Massage Establishment Certificate. 1. For the purpose of enforcing the requirements of this chapter, the massage establishment operator shall be responsible for the conduct of all massage establishment employees, agents, independent contractors, or other representatives while such persons are on the premises of the massage establishment or providing outcall massage services on behalf of the massage establishment. 1 In addition to any other remedy available to the city under this code or state law, a certified massage establishment certificate may be suspended or revoked by the permit authority as provided in - Sections 10.90. 120 and 10.90.130. Upon revocation of a certified massage establishment certificate for a massage establishment, the massage establishment shall immediately cease operation, and, if so ordered by the hearing officer, no other massaQ,e establishment shall be permitted to operate at that location by any person for a period of not less than one (1) year ("the moratorium period"). If the operator is not also the e establishment is situated, massage legal owner -of the real property on which the Z:� C notice of such revocation and the one-year prohibition shall be provided by the permit authority to the owner of record of the property as shown on the latest county assessment roll. 3. In addition to any other remedy available to the city under this code or state law, a certified massage establishment certificate may not be renewed or amended by the n. operator unless and until due and unpaid citations issued to the operator pursuant to this chapter are paid in full. Citations shall not be deemed to be due and unpaid until the 30 - day period for appeal of the citation has passed. 4. Notwithstanding any other provision of this chapter, where a Notice of Revocation or Suspension has been issued to the operator of a massage establishment pursuant to Section 10.90.130 of this chapter, the permit authority shall not process or grant an application fora certified massage establishment certificate or operator permit for a new massage establishment at the same premises unless and until such Notice of Revocation or Suspension is: dismissed; or a final determination is made pursuant to that section that the current operator's certified massage establishment certificate or operator permit is not or should not be revoked; or any moratorium period imposed pursuant to this subsection or subsection 10.90.070(K) has expired. 10.90.070 Regulations applicable to operation of massage establishment other than certified massage establishment—Operator permit required. No massage establishment may operate in the city that does not qualify as a certified massage establishment, unless and until all owners of the massage establishment have applied for and obtained an operator permit for the massage establishment from the permit authority under this section. A. Application for Operator Permit. All owners of the massage establishment, or their duly authorized agent, shall file an application for an operator permit for the massage establishment on a form provided by the permit authority. For purposes of this section, the "applicant" for the operator permit shall refer to and include each and every owner of the massage establishment. The application shall include the following information: 1. Name, address, and telephone number of the massage establishment, 2. The name, residence address and telephone number, and business address and telephone number of the massage establishment owner(s) applying for the operator permit. C, t:� 3. The form of business under which the applicant will be conducting the massage establishment, i.e., corporation, general or limited partnership, limited liability company., or other form. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation, together with the names and residence addresses of each of its officers, directors, and each shareholder holding more than ten percent (10%) of the stock of the corporation. If the applicant is a general or limited partnership, the application shall set forth the name and residence address of each of the partners, including limited partners. If one (1) or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant shall apply. If the applicant is a limited liability company, the application shall set forth the name and residence address of each of the members. If one (1) or more of the members is a partnership, limited liability company, or corporation, the provisions of this section A pertaining to a partnership, limited liability company, or corporate applicant shall apply, as applicable. 4. The name and address of the owner of the real property upon, in, or from which the massage establishment is to be operated. In the event the applicant is not the legal owner of the property, the application shall be accompanied by a copy of any written lease between the applicant and the property owner authorizing use of the premises for a massage establishment, or, alternatively, if there is no written lease, then a written, notarized acknowledgment from the property owner that the property owner has been advised that a massage establishment will be operated by the applicant upon, in, or from the property owner's property. 5. A description of the proposed massage establishment, including the type of treatments to be administered. 6. The name of each person that the massage establishment employs or retains to perform massage therapy for compensation, whether on or off the massage establishment premises. 7. For each person that the massage establishment employs or retains to perform massage therapy for compensation, whether on or off the massage establishment premises, a copy of that person's current certification from the California Massage Therapy Council as a certified massage practitioner or as a certified massage therapist, and a copy of that person's current California Massage Therapy Council -issued identification card. 8. Whether any license or permit has ever been issued to the applicant by any jurisdiction under the provisions of any ordinance or statute governing massage or somatic practice, and as to any such license or permit, the name and address of the issuing authority, the effective dates of such license or permit, whether such license or permit was ever suspended, revoked, withdrawn, or denied; and copies of any documentary materials relating to such suspension, revocation, withdrawal, or denial. 9. Whether the applicant has within the five (5) years immediately preceding the date of application been convicted in any state of any felony. 10. Whether the applicant is currently required to register under the provisions of Section 290 of the California Penal Code. 11. The applicant's business, occupation, and employment history for five (5) years preceding the date of application, and the inclusive dates of same. 12. One (1) set of fingerprints for each applicant in a form satisfactory to the permit authority. The fingerprints shall be taken at a place designated by the permit authority, and any required fee for such fingerprinting shall be paid by the applicant. 10 13. Such other information as may be required by the permit authority to determine compliance with any other eligibility requirements for issuance of the permit as specified Z1- by federal, state, or local law. The permit authority may waive any of the requirements of this section for an owner who is also a certified massage practitioner. B. Application Fee. Any application for an operator permit Linder this chapter shall be accompanied by a nonrefundable application fee in an amount established by resolution of the city council. C. Massage Establishment Facilities and Operations. A massage establishment shall comply with the requirements of section 10.90.090. D. Operator Permit—Criteria for Granting or Denying. The permit authority shall grant an operator permit for the massage massage establishment if the e establishment owners have Z7 -1 satisfied the requirements of this section and all other applicable laws including, but not limited to, the city's building, zoning, and health regulations, unless the permit authority determines any or more of the following to be true: The applicant, or any shareholder, partner, or member of the applicant, within five (5) years immediately preceding the date of filing of the application, has been convicted in a court of competent jurisdiction of any offense that relates directly to the operation of a massage establishment whether as a massage establishment owner or operator or as a person practicing massage for compensation, or as an employee of either; or has at any time been convicted in a court of competent jurisdiction of any felony the commission of which Occurred on the premises of a massage establishment; or 2. The applicant is currently required to register under the provisions of Section 290 of the California Penal Code; or 3. The applicant, or any shareholder, partner, or member of the applicant, within five (5) years of the date of application, has been convicted in a court of competent jurisdiction of any violation of Sections 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), [or] 653,22 of the California Penal Code, or conspiracy or attempt to commit any such offense, or any offense in a jurisdiction outside of the State of California that is the equivalent of any of the aforesaid offenses; or 4. The applicant, or any shareholder, , partner, or member of the applicant, has been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Section 11225 through 11235 of the California Penal Code, or any similar provision of law in ajurisdiction outside the State of California; or 5. The applicant, or any shareholder, partner, or member of the applicant, has knowingly tl� made a false statement or omission of a material fact in the application for the permit; or 6. The applicant, if an individual, has not attained the age of eighteen (18) years; or W 7. The applicant, or any shareholder, partner, or member of the applicant, within five (5) years of the date of application, and as established by clear and convincing evidence, has engaged in acts prohibited under California Penal Code Sections 266, 266a, 266e, 266f, engaged 266=1o, , 266h, 2661, 264 315, 316, 318, 647(b), or 653.22; or S. The applicant, or any shareholder, partner, or member of the applicant, within five (5) years immediately preceding the date of filing of the application, has had a permit or license to practice massage for compensation or to own and/or operate a massage e establishment revoked or denied in any jurisdiction. E Operator Permit—Issuance. The operator permit shall include, but not be limited to, the name of the massage establishment, the address of the massage establishment, the names of the owner or owners of the massage establishment, the date of issuance of the permit, the date of expiration of the permit, the permit number, a listingb of the certified massage practitioners registered and authorized to perform massages for the massage establishment, and a listing of any other persons employed or retained to work in any other capacity on the premises. F. Notice to Property Owner. Where the applicant is not the record owner, as shown on the latest county assessment roll, of the property upon, in, or from which the massage establishment is to be operated, then upon issuance of an operator permit, the permit authority may send a written notice to the property owner advising of the issuance of the permit and of the regulations applicable to the massage establishment and the property pursuant to this chapter. Any other notices sent to the applicant pursuant to this chapter at any time before or after issuance of the operator permit may also be sent to the property owner. G. Notice of Denial—Appeal—Judicial Review. If an operator permit is denied, the permit authority shall serve on the applicant, in the manner provided in section 1.08.060 of this code, a written notice of denial that shall specify the grounds for the denial. The applicant shall have the right to appeal from a decision by the permit authority to deny an operator permit application by filing with the city clerk a written notice of appeal, specifying the ,,rounds for such appeal, within fifteen (15) days after the decision has been served on the applicant. Such appeal shall be heard by a hearing officer appointed by the permit authority, upon not less than fifteen (15) days written notice to the applicant. The designated hearing officer shall consider all relevant evidence at the hearing, may continue the hearing for good cause, and may require such legal briefing as may be required to address any issues raised by the appeal. Within a reasonable time, but not more than thirty (30) days following the conclusion of the g hearing, the hearing officer shall issue a written decision as to whether the tn C7 application shall be granted or denied, supported by factual findings and determinations referenced by supporting evidence. The written decision shall be served on the applicant as provided in Code of Civil Procedure Section 1094.6, with a copy served on the permit authority. The written decision of the hearing officer shall be final and shall be subject to judicial review according to the provisions and time limits set forth in Code of Civil Procedure Section 1094.6. 12 H. Display of Permit. Each holder of an operator permit shall display that permit in an open and conspicuous place on the premises visible from the entrance and/or reception and waiting area of the massage establishment. 1. Term. An operator permit issued pursuant to the terms of this chapter shall be valid for a term of one (1) year from the date of issuance. A permit that has not expired and has not been suspended or revoked may be renewed for another one-year period, on submittal of a written application and payment of a renewal application fee to be established by resolution of the city council. J. Requirement to Amend Operator Permit application. In addition to the requirements of sections_ 10.90.100 and 10,90.110, whenever the information provided in the application for operator permit on file with the city changes, for example by a change in employees, the operator shall, within ten (10) business days after such change, file an amendment to the operator permit application with the permit authority. An amendment to an operator permit application shall be accompanied by a fee as established by the City's Master Fee Schedule. It shall be a violation of Section 10.90.050(C) of this chapter for the operator to allow any person to perform massage therapy for compensation on the premises of a massage establishment unless and until an amended operator permit has been issued by the permit authority identifying that person as employed or retained by the massage establishment to practice massage therapy for compensation. K. Violations—Operator Responsibility; Suspension or Revocation of Operator Permit. 1. For the purpose of enforcing the requirements of this chapter, the massage establishment operator shall be responsible for the conduct of all massage establishment employees, Z:� agents, independent contractors, and other representatives, while on the premises of the business or establishment or providing outcall massage services on behalf of the massage 9 establishment. 2. In addition to any other remedy available to the city under this code or state law, an operator permit may be suspended or revoked by the permit authority as provided in Sections 10.90.120 and 10.90.130. Upon revocation of an operator permit for a massage establishment, the massage establishment shall immediately cease operation, and, if so ordered by the hearing officer, no other massage establishment shall be permitted to operate at that location by any person for a period of not less than one (1) year ("the moratorium period"). If the operator is not also the legal owner of the real property on which the massage establishment is situated, notice of such revocation and the one-year prohibition shall be provided by the permit authority to the owner of record of the property as shown on the latest county assessment roll. 3. In addition to any other remedy available to the city under this code or state law, an operator permit may not be renewed or amended by the operator unless and until due and unpaid citations issued to the operator pursuant to this chapter are paid in full. Citations shall not be deemed to be due and unpaid until the 30 -day period for appeal of the citation has passed. 13 4. Notwithstanding any other provision of this chapter, where a Notice of Revocation or Suspension has been issued pursuant to Section 10,90.130 of this chapter to the operator of a prior massage establishment on the same premises, the permit authority shall not process or grant an application fora new massage establishment certificate or operator permit at the same premises unless and until such Notice of Revocation or Suspension is: dismissed; or a final determination is made pursuant to that section that the current operator's certified massage establishment certificate or operator permit is not or should not be revoked; or any moratorium period imposed pursuant to this subsection or subsection 10.90.060(J) has expired. 10.90.080 Massage establishment inspection. A. The inspector shall have the right to enter any massage establishment during regular business CI C) hours, without a search or inspection warrant, to make reasonable inspection to ascertain whether there is compliance with the provisions of this chapter. B. The massage establishment operator shall take immediate action to correct each violation noted by the inspector. A reinspection will be performed within thirty (30) days to ensure that each violation noted by the inspector has been corrected. 10.90.090 Requirements for all massage establishment facilities and operations. A. Operational Requirements. Except as otherwise specifically provided in this chapter, the massage following operational requirements shall be applicable to all e establishments located 11� within the city: 1. No massage establishment shall be kept open for business between the hours of ten p.m. (10:00 pm.) of one (1) day and seven a.m, (7:00 a.m.) of the massage following g day. A e -1 begun any time before ten p.m. (10:00 p.m,) must nevertheless terminate at ten p.m. Z� (10:00 p.m.). The hours of operation of the massage establishment shall be displayed in a conspicuous public place in the reception and waiting area and in any front window 11 clearly visible from outside of the massage establishment. 2. Patrons and visitors shall be permitted in the massage establishment only during the hours of operation. 3. During the hours of operation, patrons shall be permitted in massage therapy rooms only if at least one (1) duly authorized certified massage practitioner is present on the premises of the massage establishment. Patrons shall not be permitted in any employee break room on the premises. 4. During the hours of operation, visitors shall not be permitted in massage therapy rooms except as follows: W, (a) the parents or guardian of a patron who is a minor child may be present in the massage therapy room with that minor child; (b) the minor child of a patron may be present in the massage therapy room with the patron when necessary for the supervision of the child; or (c) the conservator, aid, or other caretaker of a patron who is elderly or disabled may be present in the massage therapy room with that elderly or disabled person. 5. During the hours of operation, except as otherwise provided herein, no visitors shall be permitted in massage therapy rooms, break rooms, dressing rooms, showers., or any other room or part of the massage establishment premises other than the reception and waiting area or the toilets. 6. Except for a patron who is inside a massage therapy room for the purpose of receiving a massage, no patrons or visitors shall be permitted in or on the massage establishment premises at any time who are less than fully clothed in outer garments of nontransparent material, or who display or expose themselves in underclothing or similar intimate apparel. 7. A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises, or provided to patrons before services are rendered. The services shall be described in English and may also be described in such other languages as may be convenient. No massage establishment operator shall permit, and no person employed or retained by the massage establishment shall offer to perform any services or request or demand fees other than those posted. B. Physical Facility and Building and Fire Code Requirements, Except as otherwise specifically provided in this chapter, the following physical facility and building code requirements shall be applicable to all massage establishments located within the city: L Main Entry Door and Reception and Waiting Area Required. One (1) main entry door shalt be provided for patron entry to the massage establishment, which shall open to an interior patron reception and waiting area immediately. All patrons and any persons other than individuals employed or retained by the massage establishment shall be required to enter and exit through the main entry door. Unless the massage establishment is a sole proprietorship or a home occupation, the main entry door shall be unlocked at all times during, business hours. 2. No g massage establishment located in a building or structure with exterior windows Z__ -1 fronting a public street, highway, walkway, or parking area shall block visibility into the C L-1 y interior reception and through waiting area h the use of curtains, closed blinds., tints, or any C C, other material that obstructs, blurs, or unreasonably darkens the view into the premises. I All interior doors. including massage therapy rooms or cubicles, but excluding individual dressing rooms and toilet rooms, shall be incapable of being locked and shall not be blocked to prevent opening. Draw drapes, curtain enclosures, or accordion -pleated closures in lieu of doors are acceptable on all inner massage therapy rooms or cubicles. 15 4. Minimum lighting equivalent to at least one (1) 40 -watt light shall be provided in each massage therapy room or cubicle. 5. 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, provided the patron is fully attired in loose clothing, pajamas, scrubs, or similar style of garment. Massage tables shall have a minimum height of eighteen (18) inches. 6. Beds, floor mattresses, and waterbeds are not permitted on the premises of the massage establishment, and no massage establishment shall be used for residential or sleeping purposes. T All locker facilities that are provided for the use of patrons shall be fully secured for the protection of the patrons' valuables, and each patron shall be given control of the key or other means of access. S. The building massage establishment shall comply with all applicable state and local C� It, standards (as adopted in title 12 of this code) and the fire code (as adopted in title 4 of this code). C. Health and safety requirements. Except as otherwise specifically provided in this chapter, the massage following health and safety requirements shall be applicable to all e establishments tl- Z� located within the city: The massage establishment shall at all times be equipped with an adequate supply of clean sanitary towels, coverings, and linens, and all massage tables shall be covered with a clean sheet or other clean covering for each patron. After a towel, covering, or linen has been used once, it shall be deposited in a closed receptacle and not used again until properly laundered and sanitized. Towels, coverings, and linens shall be laundered either by regular commercial laundering, or by a noncommercial laundering process that includes immersion in water at least one hundred forty (140) degrees Fahrenheit for not less than fifteen (15) minutes during the washing or rinsing operation. Clean towels, coverings, and linens shall be stored in closed, clean cabinets when not in use. 2. All massage therapy rooms or cubicles, wet and dry heat rooms, toilet rooms, shower compartments, hot tubs, and pools shall be thoroughly cleaned and disinfected as needed, and at least once each business day when the premises have been or will be open and such facilities in use. All bathtubs shall be thoroughly cleaned and disinfected after each ZD use. 3. All liquids, creams, or other preparations used on or made available to patrons shall be kept in clean and closed containers. Powders may be kept in clean shakers. All bottles and containers shall be distinctly and correctly labeled to disclose their contents. When only a portion of a liquid, cream, or other preparation is to be used on or made available to a patron, it shall be removed from the container in such a way as not to contaminate the remaining portion. I 4. No invasive procedures shall be performed on any patron. Invasive procedures include, but are not limited to: (a) Application of electricity that contracts the muscle; (b) Penetration of the skin by metal needles; (c) Abrasion of the skin below the nonliving, epidermal layers, (d) Removal of skin by means of any razor-edged instrument or other device or tool; (e) Use of any needle-like instrument for the purpose of extracting skin blemishes; and C (f) Other similar procedures. 5. All bathrobes, bathing suits, and/or other garments that are provided for the use of patrons shall be either fully disposable and not used by more than one (1) patron, or shall be laundered after each use pursuant to subsection (C)(1) of this section. 6. All combs, brushes, and/or other personal items of grooming or hygiene that are provided for the use of patrons shall be either fully disposable and not used by more than one (1) patron, or shall be fully disinfected after each use. 7. No patrons shall be allowed to use any shower facilities of the massage establishment unless such patrons are wearing slip -resistant sandals or flip-flops while in the shower Z__ compartment. All footwear such as sandals or flip-flops that are provided for the use of patrons either shall be fully disposable and not used by more than one (1) patron, or shall be fully disinfected after each use. S. The patron's genitals, pubic area, anus, and areola must be fully draped at all times while any individual employed or retained by the massage establishment to practice massage for compensation, or any other employee or operator of the massage establishment, is in the massage therapy room or cubicle with the patron. No massage therapy shall be provided to a patron that results in intentional contact, or occasional and repetitive contact, with the genitals, pubic area, anus, or areola of a patron. 9. No alcoholic beverages shall be sold, served, or furnished to any patron; nor shall any C� alcoholic beverages be kept or possessed on the premises of a massacre establishment. tl D. Attire and Physical Hygiene Requirements. The following attire and physical hygiene - z- I requirements shall be applicable to all employees and any other persons who work permanently or temporarily on the premises, of a massacre establishment within the city, including, but not limited to, all persons who are employed or retained to practice massage or I L_ bodywork for the massage establishment: 1. No person shall dress in: (a) attire that is transparent, see-through, or substantially exposes the person's undergarments; 17 (b) swim attire, if not providing a water-based massage modality approved by the California Massage Therapy Council; (c) a manner that exposes the person's breasts, buttocks, or genitals; (d) a manner that constitutes a violation of Section 314 of the California Penal Code. 2. No massage establishment operator, employee, or visitor shall, while on the premises of a massage establishment or while performing any outcall massage service, and while in the presence of any patron, customer, employee or visitor, expose his or her genitals, buttocks, or chest. 3. All persons shall thoroughly wash their hands with soap and water or any equally effective cleansing agent immediately before providing massage therapy to a patron. No massage therapy shall be provided upon a surface of the skin or scalp of a patron where such skin is inflamed, broken (e.g., abraded or cut), or where a skin infection or eruption is present. E. Display of Permit and Certifications. Each person employed or retained by a massage establishment to perform massage therapy in or on the premises or through an outcall massage service shall display on his or her person the valid current photograph -bearing identification card issued to that employee by the California Massage Therapy Council pursuant to the Massage Therapy Act. A copy of each such identification card shall also be displayed in an open and conspicuous place visible from the main entry door and/or reception and waiting area of the massage establishment, The home address of any employee need not be displayed, 10.90.100 Change of business name or location. No person permitted to operate a massage establishment under this chapter shall operate under any name or conduct business under any designation not specified in the certified massage establishment certificate or operator permit and city business license. Upon a change of location of a massage establishment where there is no change of massage establishment owner(s), an application for an amended certified massage establishment certificate or operator permit shall be filed with the permit authority, and such application shall be granted, provided all applicable provisions of this code are complied with as to the new location, and any due and unpaid citations issued to the operator pursuant to this chapter are paid in full. Citations shall not be deemed to be due and unpaid until the 30 -day period for appeal of the citation has passed. 10.90.11.0 Sale or transfer of massage establishment or ownership interest therein. Upon a sale or transfer of any massage establishment, or upon the sale or transfer of some or all of the interest of any massage establishment owner to a person who is not already an owner of the massage establishment, a new certified massage establishment certificate or operator permit shall be required. W 10.90.120 Grounds for revocation or suspension of operator permit or certified massage establishment certificate. All massage establishment operators shall be deemed to know and understand the requirements and prohibitions of this chapter. Any operator permit or certified massage establishment certificate issued pursuant to this chapter may be suspended or revoked by the permit authority after a hearing, where it is found by clear and convincing evidence that any of tD, the following have occurred on even a single occasion: A. The person(s) to whom the operator permit or certified massage establishment certificate has been issued, or any person employed or retained by the massage establishment, has been found to have violated any provision of this chapter; or B. Any owner of a massage establishment which is operating pursuant to a certified massage I - establishment certificate is no longer qualified as a certified massacre practitioner for any L_ reason" or C. The permittee/certificate holder or any person employed or retained by the massage establishment has been convicted in a court of competent jurisdiction of having violated, or has engaged in conduct constituting a violation of, any of the following: California Penal 9 Z-1 Code Sections 266, 266a, 266e, 266f, 2668, 266h, 2661, 266j, 315, 316, 318, 647(b), or 653.22, or conspiracy or attempt to commit any such offense, or any offense in a jurisdiction outside of the State of California that is the equivalent of any of the aforesaid offenses: or D. The permittee/certificate holder or any person employed or retained by the massacre establishment is required to register under Section 290 of the California Penal Code; or E. The permi ttee/certi fic ate holder has been subject to a permanent injunction against the conducting or maintaining of a nuisance pursuant to this code, or Section 11225 through 11235 Of the California Penal Code, or any similar provision of law in any -jurisdiction outside the State of California; or F. The permittee/certificate holder or any employee of the massage establishment has engaged in fraud or misrepresentation or has knowingly made a misstatement of material fact while LI working in or for the massage establishment; or Z:I G. The permittee/certificate holder has continued to operate the massage establishment after the operator permit or certified massage establishment certificate has been suspended; or H. Massacre treatments are or have been performed on the premises of the massage establishment, with or without the permittee/certificate holder's actual knowledge, by any person who is not a duly authorized certified massage practitioner; or 1. There have been one (1) or more acts prohibited under California Penal Code Sections 266, 266a, 266e, 266f, 2668. 266h, 2661, 266j, 315, 316, 318, 647(b), or 653.222 taking place on IN the premises of the massage establishment, whether or not any criminal prosecution has been r -I pursued or conviction obtained for such acts, and whether or not they occurred with or without the actual knowledge of the permittee/certificate holder, or I The permittee/certificate holder or any person employed or retained by the massage establishment or any other person on the premises of the ed engag massage establishment has C� t.- in conduct or committed acts that a reasonable person in the patron's position would understand as an offer to perform on or engage in with the patron acts that are sexual in engage nature or that involve touching of the patron's genitals, pubic area, anus, and areola. 10.90.130 Hearing by permit authority for revocation or suspension. A. Written Notice Required. The permit authority, before revoking or suspending any operator permit or certified massage establishment certificate, shall serve the permittee/certificate holder with written Notice of Revocation or Suspension, provided in the manner set forth in section 1,08.060 of this code, of the alleged grounds for revocation or suspension and the date for a hearing, to be held no less than ten (10) days and no more than sixty (6o) days after the service of the written notice, to consider whether the permit shall be revoked or suspended. B. Hearing, The permit authority shall appoint a hearing officer to hear and consider all evidence at the nCFmay, hearing. The hearing after being commenced within the time specified L- t� - pursuant to subsection (A) of this section, be continued for good cause by the hearing officer from time -to -time. The hearing officer may require such legal briefing as may be required to address any issues raised at the hearing. C Notice of Decision; Judicial Review. Within a reasonable time, but not more than thirty (30) days following the conclusion of the hearing, the hearing officer shall issue a written decision as to whether the permit/certificate shall be revoked or suspended, supported by factual findings and determinations referenced by supporting evidence. The written decision shall be served on the permittee/certificate holder as provided in Code of Civil Procedure Section 1094.6, with a copy submitted to the city clerk and the city attorney. The written decision of the hearing officer shall be final and shall be subject to judicial review according tl i 1 1 Z71 to the provisions and time limits set forth in Code of Civil Procedure Section 1094.6. 10.90.140 Business license required. The requirements of this chapter shall be in addition to any business license and business license tax requirements imposed pursuant to chapter 10.04 of this code for operation of a massage establishment, 10.90.150 Exemptions. us] This chapter shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions: A. Physicians, surgeons, chiropractors, osteopaths, podiatrists, physical therapists, nurses, or any L- - other person licensed to practice any healing art Linder the provisions of Division ') (commencing with Section 500) of the Business and Professions Code when engaging in such practice within the scope of his or her license. B. Trainers of any amateur, semi-professional, or professional athlete or athletic team, so long as such persons do not practice massage therapy as their primary occupation at any location where they provide such services in the city, C. Barbers, estheticians and cosmetologists who are duly licensed under the laws of the State of California, while engaging in practices within the scope of their licenses. Z-1 Z-- tl D. Individuals in the city temporarily for educational events or disaster relief. E. Individuals administering massages or health treatments involving massage to persons participating in road races, track meets, triathlons, educational events, conferences or similar single -occurrence athletic, recreational, or educational events. F. Somatic practitioners who use no physical touch of any kind at any time in their practice, G. Enrolled students of a school of massage when they are performing massage within the city as part of a formal supervised internship or training program operated by the school, without compensation other than school credit, on the premises of a massage establishment duly authorized to operate pursuant to the terms of this chapter; and provided that the operator of the massage establishment has first notified the permit authority in writing of the name, residence addressand school of the students and the dates of the trainin- esi . C,s. 10.90.160 Violations a public nuisance; penalties, nuisance abatement, and other remedies. Any massage establishment operated, conducted, or maintained contrary to the provisions of this chapter shall be, and the same is hereby declared to be, unlawful and a public nuisance, and the city attorney 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. Such remedies shall be in addition to any other judicial and administrative penalties and remedies available to the city under this chapter, or chapters 1.40, 1.42, 1.44, or 1.46 of this code, or under state law. DIVISION 3: This Ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to the State CEQA Guidelines, since it can be seen with certainty that there is no possibility that 21 this Ordinance, containinc, minor amendments to the registration, inspection and revocation processes for massage establishments or its implementation, would have a significant effect on the environment and is covered by the general rule, pursuant to 14 Cal. Code Regs. Section 15061(b)(3). DIVISION 4: If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared invalid. A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to the Council meeting at which it is adopted, This Ordinance shall be in full force and effect thirty (30) days after its final passage, and the summary of this Ordinance shall be published within fifteen (15) days after the adoption, together with the names of the Councilmembers voting for or against same, in the Marin Independent Journal, a newspaper of general circulation published and circulated in the City of t1- San Rafael, County of Marin, State of California. Within fifteen (15) days after adoption, the City Clerk shall also post in the office of the City Clerk, a certified copy of the full text of this Ordinance along with the names of those Councilmembers voting c, for and against the Ordinance. t-- /AR4O. PHI LIPS, Mayor ATTEST: Z, T- a ESTHER C. BEIRNE, City Clerk The foregoing Ordinance No. 1927 was read and introduced at a regular meeting of the City Council of the City of San Rafael on the I" day of December, 20t4, and was ordered passed to print by the following vote, to wit-, 41- 22 AYES: Councilmembers: Bushey, Colin, Connolly, McCullough & Mayor Phillips NOES: Councilmembers: None ABSENT: Councilmembers: None and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 15th day of December, 2014. ESTHER C. BEIRNE, City Clerk IE