HomeMy WebLinkAboutCC AG PKT 2007-04-23 #J
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AGENDA REPORT
DATE:
April 23, 2007
TO: Honorable Mayor and City Council
TIiRU: Greg Beaubien, Interim-City Manager
FROM: Jeff Kirkpatrick, Chief of Police
SUBffiCT: Massage Ordinance Amendment
SUMMARY OF REQUEST:
Staff requests that City Council Introduce for first reading Ordinance No.
Amending Title 4, Chapter 5.45 - Massage Establishments, of the Seal Beach Municipal
Code relating to massage establishments.
BACKGROUND:
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Staff has found that implementation and enforcement of the previous version of Title 4,
Chapter 5.45 - Massage Establishments, did not provide for the efficient processing of
massage establishment and massage technician applications. The previous version also
provided ineffective means to enforce violations of the ordinance.
This proposed amendment corrects previous deficiencies and strengthens the ordinance in
the public interest as to the prevention of vice related crime associated with massage
establishments and employees in that industry.
FISCAL IMPACT:
None.
RECOMl\llENDATION:
Staff recommends Introduction and first re\lding of Ordinance No.
Title 4, Chapter 5.45 - Massage Establishments.
Amending
Jeff Kirkpatrick - Chief of Police
NOTED AND APPROVED:
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AGENDA ITEM .T
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ORDINANCE NO.
AN ORDINANCE OF THE CITY OF SEAL BEACH AMENDING TITLE 4
OF THE SEAL BEACH MUNICIPAL CODE RELATING TO MASSAGE
ESTABLISHMENTS
THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES ORDAIN AS
FOLLOWS:
Section I Chapter 5,45 of the caption page to Title 5 (Business Licenses and
Regulations) relating to massage establishment is hereby amended to read as follows:
"Chapter 5.45 Massage Establishments
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A 5.45.005
A 5.45.010
A 5.45.015
A 5.45.020
A 5.45.025
A 5.45.030
A 5.45.035
A 5.45.040
A 5.45.045
A 5.45.050
A 5.45.055
A 5.45.060
A 5.45.065
A 5.45.070
A 5.45.075
A 5.45.080
A 5.45.085
A 5.45.090
D 5.45.095
D 5.45.100
A 5.45.105
A 5.45.110
A 5.45.115
A 5.45.120
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Definitions.
Applicability of Chapter.
(Reserved)
Out Call Massage Service: Ulega!.
Massage Establishments: Permit Required.
Massage Establishments: Permit Application.
Massage Establishments: Application Review.
Massage Establishments: Permit Non-assignable.
Massage Establishments: Operating Requirements.
Massage Establishments: Facilities.
Massage Establishments: Inspections.
Massage Establishments: Change of Location or Name.
Massage Establishments: Notice of Violations and Permit Suspension
or Revocation.
Massage Establishments: Permit Renewal.
Massage Technicians: Permit Required.
Massage Technicians: Permit Application.
Massage Technicians: Application Review.
Massage Technicians: Prohibited conduct.
Massage Technicians: Notice of Violations and Permit Suspension or
Revocation.
Massage Technicians: Permit Renewal.
Request for Hearing on Revocation or Suspension of Massage
Establishment Permit, Massage Technician Permit
Procedures for Hearing on Appeal.
No Refund of Fee.
Return of Permit"
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Section 2 Chapter 5.45 of Title 5 (Business Licenses and Regulations) relating to
massage establishment is hereby amended to read as follows:
"Chapter 5.45 Massage Establishments
f 5.45.005
Definitions.
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For the purposes of this Chapter, the following words and phrases shall mean:
A. "Massage": any method of treating the external parts of the body for
remedial, health or hygienic purposes. Massage includes, but is not limited to, massage
by means of pressure, friction, stroking, kneading, rubbing, tapping, pounding; massage
by means of stimulating the external parts of the body with any mechanical or electrical
apparatus or appliances, or with rubbing alcohol, lineaments, antiseptics, oils, powders,
creams, lotions, ointments, or other similar preparations; and massage by means of baths,
including, but not limited to, Turkish, Russian, Swedish, Japanese, vapor, shower,
electric or magnetic massages, alcohol rubs, or any other type of system for treating or
manipulating the human body with or without the character of a bath. Massage includes
acupuncture, acupressure, aromatherapy and reflexology.
B. "Massage Establishment": any establishment having a fixed place of
business where any person engages in, conducts, or carries on, or so permits, any
business of giving a massage.
C. ''Massage Technician" or "Massage Trainee": any person who administers
a massage to another person, for any form of con&.ideration.
D. "Employee": any person who is employed by a massage establishment.
E. "Person": as defined in Section 1.10.010.
F. "Recognized School of Massage": (I) any institution which: has been
approved by the California Department of Consumer Affairs - Bureau of Private
Postsecondary and Vocational Education pursuant to Education Code f 94915; teaches
the theory, ethics, practice, profession, or work of massage; and requires for graduation a
resident course of study not less than 500 hours; or (2) any insti~tiOD outside California
that complies with standards commensurate with those set forth in this definition and has
obtained certification under any similar state certification program, if such exist, which
teaches the theory, ethics, practice, profession or work of massage. "Recognized school
of massage" does not include schools offering a correspondence course not requiring
attendance.
G. "Out Call Massage Service": administration of "massage," for any form of
consideration at a location designated by the customer other than a legally permitted
massage establishment.
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H. "Reflexology": the application of pressure to reflex points in hands, feet or
ears by means of hands, thumbs and fingers.
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1.
"Chief': Seal Beach Chief of Police or his or her delegate.
J. "Designated Managing Officer": the natural person designated by a
corporation or partnership as the applicant on the application for a massage establishment
permit and the co-permittee upon the issuance of a massage establishment permit.
K. "Customer": all persons on the premises during operating hours who are
not the applicant, the applicant's officers or employees or vendors.
L. "Health Officer": The Orange County Health Department officer
responsible for inspecting massage establishments in Seal Beach, or his or her delegate.
fi 5.45.010 Applicability of Chapter.
A. The provisions of this Chapter shall not apply to the following persons
when engaged within the scope of their respective professional duties:
1. Physicians, surgeons, chiropractors, osteopaths, or physical
therapists that are duly licensed to practice their respective professions in the state of
California.
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2. Nurses registered under the laws of the state of California.
3. Barbers and beauticians who are duly licensed under the laws of
the state of California. This provision shall apply solely to the massaging of the neck,
face, scalp and hair of the customer or client.
4. The medical staff of hospitals, nursing homes, sanitariums, or other
health care facilities duly licensed by the state of California.
S. Coaches and trainers of accredited high schools, junior colleges
and colleges.
6.
athletic teams,
Trainers of amateur, semi-professional or professional athletes or
B. The provisions of this Chapter shall apply to independent contractors of
such persons if the independent contractor is engaged in, or purports to be engaged in, the
business of massage.
fi 5.45.015
fi 5.45.020
(Reserved).
Out Call Massage Service: megal.
No person shall engage in out call massage or to operate business providing out call
massage.
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fi 5.45.025 Massage Establishments: Permit Required.
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It is unlawful for any person to operate a massage establishment without first obtaining,
and maintaining in full force and effect, a massage establishment permit for such
business, in addition to any other license or permit required by the City.
A 5.45.030 Massage Establishments: Permit Application.
A. An applicant for a massage establishment permit shall submit to the Chief
an application and a non-refundable application fee in an amount established by City
Council Resolution. The applicant shall include a copy of the fee receipt with the
application.
B. The application fee shall be in addition to any other business license or
tax, permit fee or any fee required by this Code.
C. The applicant shall not operate its proposed massage establishment until
the City has issued all necessary permits and licenses. A permit issued pursuant to this
Chapter shall be valid for the term of one year from the date of issuance.
D. The application shall include, under penalty of perjury that all of the
information submitted is true and correct:
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1. The applicant's full true name, any other names used; date of birth,
any other date of birth used; sex, height, weight, color of hair, color of eyes; California
Driver's License number, or California Identification number; Social Security number,
present residence address and telephone number. In addition, the applicant shall submit 2
photographs of the applicant that meet Police Department requirements and, if required
by the Chief, his or her fingerprints.
2. The applicant's residences, and the dates thereof, for the prior five
years.
3. The applicant's business, occupation, and employment history and
the dates thereof, for the prior five years.
4. The applicant's entire permit and license history, and the dates and
types thereof, including any permit or license issued for a massage establishment,
massage technician or adult business. The applicant shall indicate whether any such
permit or license was revoked or suspended and, if so, the reasons.
S. The applicant's entire record of criminal convictions (except non-
felony traffic offenses) and ordinance violations, and the dates and places thereof.
6. Acceptable written proof that the applicant is at least 18 years of
age.
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7. A certificate from a medical doctor stating that each proposed
Massage Technician has, within 30 days immediately prior thereto, been examined and
found to be free of any contagious or communicable disease.
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8. The name and address of any massage business or other like
establishment owned or operated by any person whose name is required to be given
pursuant to this Section.
9. A complete description of all services to be provided at the
massage establishment and of any other business to be operated on the same or, when
owned or controlled by the applicant, adjoining premises.
10. The name, address, date of birth and position of each person who is
or will be employed in the massage establishment.
11. If the applicant is a corporation, its name exactly as shown in its
Articles of Incorporation or Charter, its state and date of incorporation, and the names
and residence addresses of each of its current officers, directors, and any stockholders
holding more than 5% of the corporation's stock.
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12. If the applicant is a partnership, the name and residence addresses
of each of the partners, including limited partners. If the applicant is a limited
partnership, it shall furnish a copy of its Certificate of Limited Partnership as filed with
the county clerk. If one or more of the partners is a corporation, the provisions of
subsection II pertaining to corporate applicants shall apply.
13. If the applicant is a corporation or partnership, it shall designate on
the application one of its officers or general partners as its responsible managing officer.
Such person shall complete and sign all forms and submit the application fee on behalf of
the applicant. The responsible managing officer shall meet all requirements applicable to
the applicant.
14, A site plan depicting how the proposed business will comply with
the design standards of this chapter and the off-street parking requirements of the zoning
ordinance and designating each room or enclosure proposed for massages.
E. The applicant, or, if the applicant is a partnership or corporation, its
designated responsible managing officer shall personally submit the application with
proof that the application fee has been paid.
F. The applicant shall notify and cause the Health Officer to inspect the
proposed site to ensure compliance with a1i applicable health laws and issue a report.
The applicant shall submit a copy of the report to the Police Department. If the applicant
does not provide to the Police Department a report determining that the site is in full
compliance within 60 days of the date of filing, the application shall be returned; a new
application shall be required with the payment of all associated fees. In addition to any
fees charged by the City, the applicant shall pay all fees charged by the County Health
Department.
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G. The applicant shall submit any change of address occurring during the
procedure of applying for a massage establishment permit.
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A 5.45.035
Massage Establishments: Application Review.
A. The Chief shall have 60 days to perform all necessary investigation related
to the application, unless the Department of Justice delays the process, in which case the
Chief shall notify the applicant that additional time is needed to complete the process.
B. Upon the completion of the investigation, the Chief shall grant the permit
upon finding:
1. The required fee has been paid;
2. The application conforms in all respects to the provisions of this
Chapter;
3.
The applicant has fully cooperated in the investigation;
4.
application; and,
The applicant has not made a material misrepresentation in the
5.
The applicant has not:
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(a) Within 5 years immediately preceding the date of filing the
application, been convicted in a court of competent jurisdiction of, or entered a plea of
guilty or nolo contendere to:
(i) Any misdemeanor or felony offense which relates
directly to the operation of a massage establishment, whether as a massage establishment
owner or operator, or as a massage technician;
(ii) Any felony the commission of which occurred on
the premises of a massage establishment.
(b) Within 5 years immediately preceding the date of the filing
of the application, had any massage establishment, operator, technician, practitioner, or
trainee license or permit revoked, denied or suspended.
(c) Within 5 years immediately preceding the date of the filing
of the application, been convicted in a court of competent jurisdiction of, or entered a
plea of guilty or nolo contendere to:
(i) Any violation of Penal Code AA 266 (h), 266 (i),
314, 315, 316, 318, or 647 (a), (b). or (d), or any lesser included offense thereof or any
other state law involving a crime of moral turpitude;
(ii) Conspiracy or attempt to commit any such offense;
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(iii) Any offense in a jurisdiction outside the state of
Califomia which is the equivalent of any of the aforesaid offenses;
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(iv) Any felony offense involving the &.a1e of a
controlled substance specified in Health and Safety Code ~~11054, 11055, 11056, 11057,
or 11058;
(v) Been found guilty of or pleaded guilty or nolo
contendere to any lesser-included offense of the above,
(d) Been subjected to a permanent injunction against the
conducting or maintaining of a nuisance pursuant to Penal Code ~~ 11225 through 11235
or any similar provisions of law in a jurisdiction outside the state of California.
(e) Been required to register under the provisions of Penal
Code Section 290.
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(1) Engaged in disqualifying conduct.
6. The massage establishment as proposed by the applicant would
comply with all the applicable laws, including but not limited to health, zoning, fire, and
safety requirements and standards,
7. The applicant is at least 18 years of age.
8. The applicant possesses the requisite background and
qualifications to conduct a bona fide massage establishment.
9. The applicant has not violated the provisions of this Chapter, or
any similar ordinance, law, rule or regulation of any other public agency, which regulates
the operation of massage establishments.
10. The subject premises have been inspected by the Health Officer
and found to be in compliance with all applicable health laws and regulations.
11. The applicant has obtained a conditional use permit pursuant to the
zoning ordinance.
C. The Chief shall deny the permit if the applicant does not fulfill the
requirements of this Chapter. The applicant may appeal the denial as set forth in Section
5.45.105.
D. No massage establishment permit shall be issued to any person who has an
Adult Entertainment Permit issued by the City or similar permit in another jurisdiction.
~ 5.45.040 Massage Establishments: Permit Non-assignable.
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A. Subject to the exception below for partnerships, no massage establishment
permit may be sold, transferred, or assigned by the permittee, 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 be a voluntary surrender of the permit and it
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shall thereafter be invalid. If the permittee is a corporation, its massage establishment
permit shall be invalid when either any outstanding stock of the corporation is sold,
transferred or assigned after the issuance of a permit, or any stock authorized but not
issued at the time of the granting of a permit, is thereafter issued and sold, transferred, or
assigned.
B. Notwithstanding subsection A, if one or more partners of a partnership
which is a permittee dies during the life of the permit, 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 permit; in such case, the
permittee shall thereafter be deemed to be the surviving partner(s).
~ 5.45.045 Massage EstabUshments: Operating Requirements.
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Each massage establishment permittee shall comply with the following:
A. Each establishment offering massage shall have a valid City massage
establishment permit.
B. Each person employed or acting as a massage technician shall have a valid
City massage technician permit. It shall be unlawful for any owner, manager, operator,
responsible managing officer or employee, or permittee in charge of or in control of a
massage establishment, to employ or permit a person to act as a massage technician who
is not in possession of a valid, unrevoked City massage technician permit. A massage
establishment permit does not authorize any person to perform massages without a valid
City massage technician permit.
C. A massage establishment shall not be open, and no massages shall be
provided, during the period between 11:00 p.m. and 9:00 a.m.
D. Each establishment shall post in a conspicuous public location on the
premises the services, prices and minimum lengths of time. All letters and numbers shall
be not less than one-inch in height. No service shall be performed and no fee shall be
charged or collected for services other than those posted. All arrangements for services
to be performed shall be made in a room in the massage establishment that is not used for
administration of massages; unless no other such room exists in the establishment. No
person shall, after the commencement of any service for any customer, inform the
customer that any additional service is aviulable, or ask or inquire of the customer
whether he or she desires any additional service to be performed. No person shall
perform any service for any customer that was not ordered by the customer prior to the
commencement of the service rendered.
E, The permittee shall display in an open and conspicuous place on the
premises the massage establishment permit and a picture of each and every massage
tec~nician who administers massages in the establishment.
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F. Each massage establishment shall keep a written record of the date and
hour of each massage, the name and address of each customer, the name of the massage
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technician administering the massage, and the type of massage authorized and
administered. The records shall be maintained for a period of 2 years. Only those
officials who are charged with enforcement of this Chapter shall inspect these records
and no information shall be used for any purpose other than enforcement of this Chapter.
No massage establishment permittee or employee shall utilize the records in any manner
unrelated to enforcement of this Chapter.
G. Each massage establishment shall at all times be equipped with an
adequate supply of clean, sanitary towels, coverings and linens. Clean towels, coverings
and linens shall be stored in cabinets. Towels and linens shall not be used on more than 1
customer or client, unless they have first been laundered and disinfected. Disposable
towels and coverings shall not be used on more than 1 customer or client. Soiled linens
and paper towels shall be deposited in separate, approved receptacles.
H. Each massage establishment shall maintain clearly identified separate
massage room or rooms, separated dressing facilities and separate toilet facilities for male
and female customers.
I. In any establishment in which massage services are rendered only to
members of the same sex at anyone time, the operator of the massage establishment may
place customers of the same &ex in a single separate room.
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J. Each massage establishment shall maintain adequate ventilation to an area
outside any room or booth where massage is being performed.
K. Each massage establishment shall thoroughly clean and disinfect with a
disinfectant approved by the Health Department wet heat rooms, dry heat rooms, steam
rooms, vapor rooms, showers, bathrooms, cabinet rooms and pools, as often as needed
and at least once each day the premises are open. Bathtubs shall be thoroughly cleaned
with disinfectant approved by the Health Department after each use.
L. Each massage establishment shall maintain in good repair and in a clean
and sanitary condition all the establishment's walls, ceilings, floors, and other physical
facilities.
M. Instruments utilized in performing massage shall not be used on more than
I customer unless they have been properly s~rilized.
N, There shall be no full or partial nudity. Employees shall not reveal
Specified Anatomical Areas, as defined in Chapter 5,15 of this Code, in the presence of
any other person.
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O. All employees shall at all times while on the premises be clean and shall
wear clean, non-transparent outer garments covering the body from knee to neck; the use
of such garment shall be restricted to the massage establishment.
P. Separate dressing rooms for each sex, equipped with individual lockers for
each employee, shall be available on the premises.
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Q. No persons shall enter, be, or remain in any part of a massage
establishment while in the possession of, consuming or using alcoholic beverages or
controlled substances, except pursuant to a prescription for medication. The owner,
operator, responsible managing employee, manager, or permittee shall not allow any
person in violation of this subsection to enter or remain upon the premises.
R. No massage establishment may operate as a school of massage, or use the
same facilities as that of a school of massage.
S. No massage establishment may place, publish or distribute, or so direct or
permit, any advertising matter which either depicts any portion of the human body or
includes text which would suggest to prospective customers that any service is available
other than those services described in Section 5.45.005 A.
T. No massage shall be given in a massage establishment within any cubicle,
room, booth, or other area, which is fitted with a door capable of being locked.
U. All exterior doors shall remain unlocked during business hours from the
interior side.
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V. A massage technician shall not massage any customer who is not wearing
clothing that fully covers the customer's genitals and the breasts of any female customer.
The massage technician shall not massage any person's genital area. The massage
technician shall not massage the breasts of any female.
W. No massage establishment may be open for business unless there is a least
one massage technician holding a current, valid permit on the premise at all times.
X. No persons other than the person receiving a massage and the
administering massage technician may be within the room where the massage takes
place.
Y. The permittee shall notify the Chief, in writing, of any change in
information concerning the original application within 30 days of such change.
Z. The permittee shall notify the Chief, in writing, of the name and address of
each person employed as a massage technici,an subsequent to the issuance of the permit
within 5 business days of that person being employed.
AA. No person licensed to operate a massage establishment shall operate under
any name or conduct business under any name or business designation not specified in
the license.
A 5.45.050
A.
Massage Establishments: Facillties.
The permittee shall provide:
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1. Signs in full compliance with the City sign ordinance.
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2. Minimum lighting in accordance with National Electric Code
Article 220; and at least one artificial light of not less than 40 watts in each room or
enclosure designated for massage.
3.
Section 1105.
Minimum ventilation in accordance with Uniform Building Code
4, Adequate equipment for disinfecting and sterilizing instruments
used in performing the acts of massage.
5. Hot and cold running water at all times.
6. Closed cabinets for storage of clean linens.
7. Adequate bathing, dressing, locker and toilet facilities for
customers, including a minimum of one tub or shower, a dressing room containing a
separate locker (capable of being locked) for each customer, and a minimum of two
toilets and two wash basins, one for males and one for females, located in separate rooms.
8. A minimum of one separate washbasin shall be provided in each
massage establishment for the use of employees.
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9. A minimum of one separate wash basin which provides soap or
detergent, and hot and cold running water at all times shall be provided in each massage
establishment for the use of employees. Such basin shall be located within, or as close as
practicable to the area devoted to performing of massage services. Sanitary towel&. shall
be provided at each basin.
10. A table designed and manufactured for medical or massage uses in
each room or area designated for massage. No mattresses and bed are allowed.
11. Pads made of durable washable plastic or other waterproof
material acceptable to the Health Officer to cover massage tables.
15.45.055
Massage Establishments: Inspection.
A. The Chief and the Health Officer shall each have the right to periodically
enter and inspect any massage establishment for the purpose of enforcing compliance
with all applicable regulations, laws, and provisions of this Chapter.
B. Whenever either the Chief or the Health Officer finds that any provision of
this Chapter has been violated, such officer shall issue notice of the violation to the
permittee by means of an inspection report or other written notice. The notification shall:
1. Set forth the specific violation or violations found;
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2. Establish a specific and reasonable period of time for the
correction of the violation or violations. If the issuing officer determines that the
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violation or violations are minor in nature, or are not continuing violation(s), the officer
may is&.ue a warning to the permittee that any further violation of this Chapter may result
in the revocation or suspension of the permit; and
3. State that failure to comply with any notice issued in accordance
with the provisions of this Chapter may result in revocation or suspension of the permit.
~ 5.45.060 Massage Establishments: Change of Location or Name; Expansion.
A. No permittee may relocate a massage establishment to another location
within the City without first obtaining: (1) a written determination by the Director of
Development Services finding that the proposed location and facilities comply with the
Municipal Code; and (2) written authorization from the Police Chief.
B. No permittee may operate under any name not specified in the permit
without first securing from the Chief an amended permit reflecting the change.
C. No permittee may expand a massage establishment without first obtaining:
(1) a written determination by the Director of Development Services finding that the
expansion complies with the Zoning Code; and (2) written authorization from the Police
Chief the proposed expansion complies with this Chapter.
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~ 5.45.065 Reserved.
~ 5.45.070 Reserved.
~ 5.45.075 Massage Technicians: Permit Required.
It is unlawful for any person to provide massage without first obtaining, and maintaining
in full force and effect, a massage technician permit. A permit issued pursuant to this
Chapter shall be valid for the term of one year from the date of issuance.
~ 5.45.080 Massage Technicians: Permit Application.
A. An applicant for a massage establishment permit shall submit to the Chief
an application and a non-refundable application fee in an amount established by City
Council Resolution. The applicant shall include a copy of the fee receipt with the
application.
B. The application fee shall be in addition to any other business license or
tax, permit fee or any fee required by this Code; provided however, that the application
fee shall be waived in the event the applicant has paid the fee required by Section
5.45.030 A.
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C. The applicant shall not administer massages until the City has issued all
necf!\ssary permits and licenses.
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D. Each application for a massage technician permit shall include the
following information:
1. All of the information set forth in subsections 1-7 of Section
5.45.030 D. If certain required information is not applicable, the applicant &.haU so
indicate.
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2. A diploma or certification of graduation, and certified copy of
transcripts from a Recognized School of Massage. In the event that the applicant has
completed at least 3 years of work experience as a massage technician, such applicant
shall be required to have completed a resident course of study consisting of not less than
300 hours of instruction, notwithstanding the provisions of Section 5.45,005 F. In the
event that the applicant has completed at least 15 years of work experience as a massage
technician, such applicant shall be required to have completed a resident course of study
consisting of not less than 200 hours of instruction, notwithstanding the provisions of
Section 5.45.005 F. The City shall have the right to confirm that the applicant has
actually attended class in and graduated from a recognized school of massage. If the
school or institution is located outside of California, the applicant shall include: (a) a
certified copy of !fanscripts of his or her record, including dates and courses, which
shows the applicant completed the appropriate course of study; and (b) a copy of the
school or institution's approval by its State Board of Education. The full name, address,
and telephone number of the massage establishment where the applicant will work. If,
subsequent to the original application, the applicant seeks work at a different massage
establishment, the applicant shall submit a new application. In such event, the applicant
shall pay a new application fee.
3. Such other information as the Police Chief may require in order to
discover the truth of the matters herein required to be set forth in the application.
4. A statement signed by the applicant certifying under penalty of
petjury that all of the information submitted in connection with the application is true and
correct.
fi 5.45.085 Massage Teclm1clans: Application Review.
A. The Chief may issue a temporary permit within 7 business days following
receipt of a written application for a massage technician's permit, if, having made an
initial investigation, the Chief concludes that the applicant has not been previously
convicted of a crime involving moral turpitude. A temporary permit shall continue unless
the Chief revokes the permit pursuant to the same criteria applicable to permanent
permits, or until it automatically expires 60 days after issuance, whichever comes first.
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B. The Chief shall have 60 days in which to investigate the application and
background of the applicant, unless the Department of Justice delays the process, in
which case the Chief shall notify the applicant that additional time is needed to complete
the process.
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C, Upon the completion of the investigation, the Chief shall grant the permit
upon finding:
1. The required fee has been paid;
2. The application conforms in all respects to the provisions of this
Chapter;
3. The applicant has satisfied the educational requirements of subsection
D.2 of Section 5.45.0S0 and is at least 1S years of age;
4. The applicant has fully cooperated in the investigation;
5. The applicant has not made a material misrepresentation in the
application; and
6. The applicant has not:
(a) Within 5 years immediately preceding the date of filing the
application, been convicted in a court of competent jurisdiction of, or entered a plea of
guilty or nolo contendere to:
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(i) Any misdemeanor or felony offense which relates
directly to the operation of a massage establishment, whether as a massage establishment
owner or operator, or as a massage technician;
(ii) Any felony the commission of which occurred on
the premises of a massage establishment.
(b) Within 5 years immediately preceding the date of the filing
of the application, had any massage establishment, operator, technician, practitioner, or
trainee license or permit revoked, denied or suspended.
(c) Within 5 years immediately preceding the date of the filing
of the application, been convicted in a court of competent jurisdiction of, or entered a
plea of guilty or nolo contendere to:
(i) Any violation of Penal Code n 266 (h), 266 (i),
314, 315, 316, 31S, or 647 (a), (b), or (d), or any lesser included offense thereof or any
other state law involving a crime of moral turpitude;
(ii) Conspiracy or attempt to commit any such offense;
(Hi) Any offense in a jurisdiction outside the state of
California which is the equivalent of any of the aforesaid offenses;
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(iv) Any felony offense involving the &.a1e of a
controlled substance specified in Health and Safety Code U11054, 11055, 11056, 11057,
or 11058;
(v) Been found guilty of or pleaded guilty or nolo
contendere to any lesser-included offense of the above.
(d) Been subjected to a permanent injunction against the
conducting or maintaining of a nuisance pursuant to Penal Code ~~ 11225 through 11235
or any similar provisions of law in a jurisdiction outside the state of California.
(e) Been required to register under the provisions of Penal
Code Section 290.
(f) Engaged in disqualifying conduct.
D. A permit issued pursuant to this Chapter shall be valid for the term of one
year from the date of issuance.
E. The Chief shall deny the permit if the applicant does not fulfill the
requirements of this Chapter. The applicant may appeal the denial as set forth in Section
5.45.105.
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~ 5.45.090
Massage Technicians: Prohibited Conduct.
A. A massage technician shall not massage any customer who is not wearing
clothing that fully covers the customer's genitals and the breasts of any female customer.
The massage technician shall not massage any person's genital area, The massage
technician shall not massage the breasts of any female.
B. Massage technicians shall at all times on the premises of the massage
establishment be clean and wear clean, non-transparent outer garments covering the body
from knee to neck.
C. No massage technician may perform a massage in any location other than
at a massage establishment holding a valid massage establishment permit.
D. No massage technician may perform a massage at any location other than
that location &.pecified on the massage technician's permit.
E. No massage technician shall engage in the following activity at a massage
establishment:
1. Sexual activity.
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2.
Unlawful solicitation of sexual activity.
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3.
Transfer of controlled substances.
4. Conduct prohibited by this Chapter.
fi 5.45.095 Massage Establishments and Technicians: Notice of Violations and
Permit Suspension or Revocation.
A. After an investigation and upon determining that grounds for revocation or
suspension exist, the Chief shall furnish written notice of the proposed action to the
permittee. The notice shall state the basis for the proposed action and that the permittee
may request a hearing within 10 days of the date of the notice, The Chief shall post the
notice at the location of the massage establishment and mail the notice by certified mail
and regular mail, postage prepaid, addressed to the permittee as the name and address
appear on the permit. The decision is final if applicant fails to request a hearing within
10 days of the date of the notice.
B. If a responsible managing officer of a massage establishment permittee
violates the operational standards of this Chapter, the corporation or partnership shall
propose a new responsible managing officer. The massage establishment permit shall be
suspended until the City determines that the proposed designee meets all applicable
Chapter requirements. If the City does not accept a proposed designee within 90 days of
a violation, the permit shall be canceled.
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C. After notice to the permittee and a hearing, if requested, the applicable
permit may be revoked or suspended for a defined period of time by the Chief if he or she
finds:
1. The permittee has violated any provision of this Chapter on two or
more occasions within any 12-month period, and the permittee has been given prior
notice of the earlier violation.
2. Any of the events in Sections 5.45.035 B 5, 5.45.085 C 6 and
5.45.090 have occurred.
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3. The permittee has engaged in fraud, misrepresentation, or false
statement in operating the massage establishment.
4. The massage establishinent permittee has continued to operate the
massage establishment after the massage establishment permit has been suspended.
5. The massage technician permittee has continued to administer
massage after the massage technician permit has been suspended.
D. The Chief or his or her authorized representative shall conduct the hearing
requested by the permittee. The permittee shall be permitted to present evidence, both
written and oral, examine witnesses, if any, and present such argument to the Chief, as
the permittee deems necessary. The permittee may be represented by counsel at the
permittee's expense. The hearing shall be informal in procedures, and the rules of
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evidence shall not apply, except that hearsay evidence shall not be the sole basis for any
decision to suspend or revoke the permit.
E. The decision and action of the Chief shall be communicated in writing to
the permittee within 7 days of the date of the hearing, and shall be appealable to the City
Manager in accordance with Section 5.45.105 of this Chapter.
F. Wherever a permit has been revoked under the terms of this Chapter,
neither the former permittee, nor any affiliated person or entity, whether an individual,
partnership, corporation, shall be granted a new permit for a period of 5 years from the
date of the revocation.
A 5.45.100 Permit Renewal.
Permittees shall submit an application for renewal to the Chief no sooner than 60 days,
and no later than 45 days prior to the expiration of the permit. A renewal application
shall include a renewal application fee established by Council Resolution and the items
required for an initial application, except as follows:
1. No additional fingerprints will be required if the applicant's
fingerprints are already on file with the city.
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2. No additional site plan will be required if the applicant declares
that the establishment continues to operate in accordance with the site plan submitted in
conjunction with the initial application.
3. No written proof of educational requirements will be required if
the massage technician's proof is already on file with the city.
A 5.45.105
Appeal.
A. Whenever an applicant or permittee is entitled to appeal a determination of
the Chief, the appeal shall be filed in writing with the City Clerk not later than 15 days
following the date of the notice of the determination. The appeal shall specify the basis
for the appeal, the action requested, and the name and address of the permittee.
B. If a timely written appeal is filed, the City Manager shall set a hearing date
and instruct the City Clerk to give such notice of hearing as may be required by law.
C. If no such appeal is timely filed, the decision of the Chief shall be final.
D. The City Manager shall act as the Hearing Officer or may appoint a
qualified Hearing Officer, such as a retired municipal or superior court judge, or person
of similar experience and qualifications, to hear and decide upon the appeal.
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~ 5.45.110 Procedure for Hearing on Appeal.
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A. The Hearing Officer shall conduct the hearing, receive oral testimony and
other evidence, and prepare findings of fact. The Hearing Officer shall commence the
hearing within 2S days of the filing of the appeal. Notice of time and place of the hearing
shall be given to the appellant by personal service or via certified mail and regular mail,
postage prepaid, at least 15 days in advance of the date set for the hearing, At the
hearing, the permittee and the Chief shall be entitled to present relevant evidence, testify
under oath, and call witnesses who shall testify under oath. The Hearing Officer shall not
be bound by the statutory rules of evidence in the conduct of the hearing, except that
hearsay evidence may not be the sole basis for the decision to revoke or suspend a permit.
B. Such appeal hearing shall be held de novo and the burden of proof shall be
on the Chief to show by preponderance of the evidence that grounds for revocation or
suspension under this Chapter exist.
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C. Within 15 days of the conclusion of the hearing, the Hearing Officer shall
determine, based upon the evidence presented in the record of the hearing, whether
grounds for revocation or suspension exist. The Hearing Officer's decision shall be in
writing and shall contain written findings of fact and his or her conclusions. The Hearing
Officer's decision shall be served upon the appellant by personal service or via certified
and regular mail, postage prepaid, at the address of the permittee contained in the permit.
The Hearing Officer's decision shall be effective upon personal service or, if service is by
mail, then 2 business days following deposit with the United States Postal Service. The
decision shall be final and conclusive and shall not be appealable to the City Council.
A 5.45.115
No Refund of Fee.
No refund or rebate of any permit fee shall be allowed.
A 5.45.120
Return of Permit.
In the event the permit is revoked, the permittee shall forward it to the City Clerk not
later than the end of the 3rd business day after notification of the revocation."
Section 3 Continuation of Existine: Law. Where substantially the same as existing
law, the above amendments shall be considered a continuation of existing law and not a
new enactment.
Section 4 Severabilitv. If any section, subsection, subdivision, paragraph, sentence,
clause or phrase of this Ordinance or any part thereof is for any reason held to be
unconstitutional, such decision shall not affect the validity of the remaining portions of
this Ordinance or any part thereof. The City Council of the City of Seal Beach hereby
declares that it would have passed each section, subsection, subdivision, paragraph,
sentence, clause or phrase thereof, irrespective of the fact that anyone or more sections,
subsections, subdivisions, paragraphs, sentences, clauses or phrases be declared
uncpnstitutional.
e Section 5 The City Clerk shall certify to the adoption of this Ordinance and the City
Clerk shall cause this Ordinance to be posted or published as prescribed by law.
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PASSED, APPROVED AND ADOPTED by the City Council of the City of Seal Beach
at a meeting thereof held on the day of , 2007.
Mayor
A'ITEST:
City Clerk
STATE OF CAUFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
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I, Linda Devine, City Clerk of the City of Seal Beach, California, do hereby certify that
the foregoing ordinance is an original copy of Ordinance Number 1558 on file in the
office of the City Clerk, introduced at a meeting held on the 23rd day of Aoril . 2007,
and passed, approved and adopted by the City Council of the City of Seal Beach at a
meeting held on the _ day of . 2007 by the following vote:
AYES: Councilmembers
NOES: Councilmembers
ABSENT: Councilmembers
ABSTAIN: Councilmembers
and do hereby further certify that Ordinance Number has been published pursuant
to the Seal Beach City Charter and Resolution Number 2836.
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City Clerk
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