HomeMy WebLinkAboutOrdinance #3694 ORDINANCE NO. 3 6 9 4
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING CHAPTER 5.24 OF THE HUNTINGTON BEACH MUNICIPAL
CODE RELATING TO MASSAGE ESTABLISHMENTS
The City Council of the City of Huntington Beach does hereby ordain as follows:
SECTION 1. Section 5.24.060 of the Huntington Beach Municipal Code is hereby
amended by deleting the second paragraph thereof, said section to now read as follows:
5.24.060 Massage establishment--Application--Investi ation. Upon receipt of the
completed application, the Chief of Police shall have sixty (60) days to investigate the
application and the background of the applicant, including, but not limited to, any past
criminal convictions as provided by the Justice Department or other legally authorized
agency. Upon completion of the investigation, the Chief of Police shall grant the permit if
he finds:
(a) The required fee has been paid.
(b) The applicant conforms in all respects to the provisions of this chapter.
(c) The applicant has not knowingly made any false, misleading or fraudulent statements in
the application-
(d) The applicant has fully cooperated in the investigation of his or her application.
(e) The applicant, if an individual, or any officers, directors, or shareholders of the
corporation holding more than 5% of the stock, if the applicant is a corporation, or any
of the partners, including limited partners, if the applicant is a partnership, has not been
convicted in a court of competent jurisdiction of an offense involving conduct which
requires registration under California Penal Code section 290, or of conduct violating
Penal Code sections 266, 314, 315, 316, 318, 647(a), and 647(b), or convicted of an
attempt to commit any of the abovementioned offenses or convicted in any state of any
offense which if committed or attempted in this state, or conspiracy to commit any of the
above offenses,'would have been punishable as one or more of the abovementioned
offenses, or any crime involving dishonesty, fraud, deceit, or moral turpitude.
(f) The massage establishment, as proposed by applicant, would comply with all applicable
laws, including but not limited to zoning, fire and safety requirements and standards.
(g) The applicant is at least eighteen (18) years of age.
(h) The applicant has not engaged in conduct which would constitute grounds for
suspension or revocation under this chapter.
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Ordinance No. 3694
(i) The applicant has shown proof of malpractice insurance and has complied with all other
city ordinances pertaining to insurance coverage.
If relevant Department of Justice state summary criminal history information is not received
within the sixty-day investigation period,the Chief of Police is authorized to issue a
temporary permit. A final decision granting or denying a permit shall be made after receipt
of such summary criminal history information. If the permit is granted, its effective date
shall be the date of issuance of the temporary permit. If the permit is denied, the temporary
permit shall expire upon notice of denial.
SECTION 2. Section 5.24.110 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.24.110 Massage technician application--Contents. In addition to all the information
required by section 5.24.040 of this chapter, each application for massage technician permit
shall contain the name, address and phone number at which the applicant will be employed
or in the case of persons providing massage at various locations throughout the City, a
permanent address other than a post office box, associated with the business, usually the
location for which a City business license has been issued.
(a) Those individuals are companies providing massage at various locations throughout
the City must possess a valid Massage Permit, and a Business License.
(b) Address of record on the Massage Permit and Business License must be the
permanent address of permitted person(s), no post office boxes or private mailboxes
will be accepted.
(c) No massage, for a fee, shall be done at the residence of the permitted massage
technician or in any hotel or motel room in the City.
(d) This section includes all definitions of massage as indicated under 5.24.010(a), and
includes Chair Massage Therapy.
The applicant must furnish a statement from a physician, licensed to practice in the state of
California,that the applicant has been examined within the past thirty(30) days prior to submitting
the application, and has been found free of any communicable disease.
SECTION•3: Section 5.14.125 is hereby added to Chapter 5 of the Huntington Beach
Municipal Code, said section to read as follows:
5.24.125 Employed Massage Technicians Massage technicians who are employed by any
licensed practitioner listed under Section 5.24.150 are not required to be permitted through
the City of Huntington Beach. An employed massage technician must be working under the
practitioner's license and the Icensed practitioner must be present at least 50% of the time at
the licensed establishment during the times the massage technician is employed and caring
for patients. To qualify for this exemption, all massage technicians must be employed by a
practitioner listed in Section 5.24.150 and their employment must be verified by an
application,wage slips, W2 or W4 tax documents. An employed massage technician shall
not receive monies paid per individual massage or tips. All documentation showing
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Ordinance No. 3694
employment of massage technicians shall be kept by the practitioner for a period of not less
than three years. This exemption does not apply to independent contractors.
SECTION 4. Section 5.24.130 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.24.130 Massage technician--Permit--Issuance. The Chief of Police shall have thirty(30)
days to investigate the application and the background of the applicant. Upon completion of
the investigation,the Chief of Police shall grant the permit if the following requirements
have been met: (2395-11179, 3267-9195)
(a) The applicant has successfully completed a minimum of 500 hours of instruction in
massage or physical therapy at a recognized school of massage, or physical therapy prior
to issuance of the permit Applicant must produce a transcript evidencing such
successful completion of training.
(b) The applicant has not had a massage establishment permit or massage technician's
permit or other similar license or permit denied or revoked for cause by a licensing
authority or by any city, county or state within three (3) years prior to the date of
application. (2395-11179,3267-9/95)
(c) All applicants must have passed an independently prepared and administered national
certification exam which has been recognized by objective standards to fairly evaluate
professional levels of skill, safety and competence, as determined by a qualified massage
association. (3267-9/95)
(d) The applicant has not been convicted of any of the offenses listed in Section 5.24.060(e)
within the last five (5) years. (3267-9195, 3467-6/00)
If relevant Department of Justice state summary criminal history information has not been
received within the thirty (30) day investigation period, the Chief of Police is authorized to
issue a temporary permit. A final decision granting or denying a permit shall be made after
receipt of such summary criminal history information. If the permit is granted, its effective
date shall be the date of issuance of the temporary permit. If the permit is denied,the
temporary permit shall expire upon notice of denial.
SECTION 5. Section 5.24,150 of the Huntington Beach Municipal Code is hereby .
amended to read as follows:
5.24.150 Exemptions. Exemptions do not apply to independent contractors of the listed
exempted professionals. Each independent contractor must possess a valid massage
technician permit. The provisions of this chapter shall not apply to the following classes of
individuals or groups while engaged in performing the duties of their respective professions:
(2395-11/79, 3267-9/95)
r
(a) Physicians, surgeons, chiropractors, osteopaths, acupuncturists, and physical therapists
duly licensed to practice in the state of California. (3467-6100)
(b) Hospitals,nursing homes, sanitariums, or other health care facilities duly licensed by the
state of California,provided that at all times such physicians, surgeons, chiropractors,
osteopaths and physical therapists are acting in adherence with the provisions of the state
law which govern this field. (3467-6/00)
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Ordinance No. 3694
(c) Registered or licensed vocational nurses duly registered by the state of California.
(d) Barbershops and beauty parlors, barbers and beauticians but only when engaged in the
practice for which they are licensed by the state of California i.e., massage above the
neck and shoulders,hands and arms and below the knee.
(e) Accredited high schools and colleges, and coaches and trainers employed therein while
acting within the scope of their employment.
(f) Trainers of any amateur, semi-professional or professional athlete or athletic team.
(2395-11/79)
(g) No employed or independent contractor massage technician may administer massage or
otherwise treat or care for patients other than patients of the practitioner and those
patients must have been prescribed massage therapy by a practitioner listed in this
section prior to the administration of the massage therapy.
(h) Physical Therapist students, and Massage Therapist students earning practical hours for
school/education, and who are currently enrolled in a licensed program for Physical
Therapy,through a recognized school/education center, can work, under the direct
supervision of an exempted professional as defined in this section. Direct supervision
means that an exempted professional, as defined in this section, must be present at all
times when a student is performing their duties.
SECTION 6. Section 5.24.160 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.24.160 Massage establishment--Facilities. Every massage establishment shall maintain
facilities meeting the following requirements:
(a) Sign _ subject to applicable provisions of the City's codes, a recognizable and legible
sign shall be posted at the main entrance identifying the business as a massage
establishment.
(b) Lighting -minimum lighting shall be provided in accordance with the Electrical Code
adopted by the City and, in addition, at least one artificial light of not less than forty(40)
watts shall be provided in each room or enclosure where massage services are performed
on patrons and shall be activated at all times while a patron is in such room or enclosure.
(3267-9195)
(c) Equipment - adequate equipment for disinfecting and sterilizing instruments used in
performing the,acts of massage shall be provided.
(d) Water-hot and cold running water shall be provided at all times.
(c) Linen storage - closed cabinets shall be provided and utilized for storage of clean linens,
and approved receptacles shall be provided for the deposit of soiled linen. (2395-11/79,
3267-9/95)
(f) Separation of sexes -if male and female patrons are to be served simultaneously at the
massage establishment, a separate massage room or rooms and separate dressing,
bathing and toilet facilities shall be provided for male and female patrons. Each separate
facility or room shall be clearly marked as such. (2395-11/79, 3267-9/95)
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Ordinance No. 3694
(g) Bathing, dressing, locker, toilet facilities - adequate bathing, dressing, locker, and toilet
facilities shall be provided for patrons. A minimum of one tub or shower, one dressing
room containing a separate locker for each patron to be served, which locker shall be
capable of being locked, and a minimum of one toilet and one wash basin shall be
provided for every massage establishment.
(h) Massage table pads -pads used on massage tables shall be covered in a professional
manner with durable, washable plastic or other waterproof material acceptable to Orange
County Health Department. -
SECTION 7. Section 5.24.170 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.24.170 Massage establishment o eration. Every massage establishment shall comply
with the following operating requirements:
(a) (1) Each person employed or acting as a massage technician shall have a valid permit
issued by the City of Huntington Beach. (2395-11/79, 3267-9/95, 3467-6/00)
(2) It is unlawful for the owner, operator, responsible managing employee, manager or
permittee in charge of or in control of the establishment to employ or permit a person
to act as a massage technician, as defined in this chapter, who does not possess a
valid massage technician's permit. (3467-6/00)
(3) No business except those exempted under section 5.24.150 herein, may employ
anyone to provide massage or allow anyone to provide massage, unless the massage
provider possesses a valid permit under this Chapter. (3467-6/00)
(b) Bath and massage operations shall be carried on and the premises shall be open only
between the hours of 7 a.m. and 9 p.m. A massage begun any time before 9 p.m. must
nevertheless terminate at 9 p.m. No person, whether licensed under this Chapter or not,
may provide massage in exchange for anything of value after 9:00 p.m. (2395-11179,
3267-9/95, 3467-6/00)
(c) A list of services shall be posted in an open, public place on the premises, and shall be
described in readily understood language. No owner, operator, responsible managing
employee, manager, or permittee shall permit, and no massage technician shall offer to
perform any services other than those posted.
(d) The owner/operator of a massage establishment shall display a massage establishment
permit and the permit for each and every massage technician employed in the
establishment in an open and conspicuous place on the premises, available for
examination upon demand by any police officer of the City. (2395-11/79,3267-9/96)
(e) Each massage technician shall wear a photo identification card prepared and issued by
the City while administering a massage. The identification card shall be worn on outer
clothing with the photo side facing out. The massage technician shall not use any name
other than specified on the photo identification card while on duty. (3267-9/95)
(f) Massage technicians and attendants shall be fully clothed at all times. Clothing shall be
of a fully opaque,non-transparent material and provide the complete covering from
mid-thigh to three (3) inches below the collar bone. (3267-9/95)
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Ordinance No. 3694
(g) Areas where massage is to be performed shall be separated by a non-lockable door. Said
door shall not be equipped with a"peep hole" or any other device that allows anyone to
see into or out of this room when the door is closed.
(h) Towels and linens shall not be used on more than one (1) patron unless they have first
been laundered and disinfected. Disposable towels and coverings shall not be used on
more than one (1)patron. (2395-11/79,3267-9/95)
(i) Wet and dry heat rooms, steam or vapor rooms or cabinets, shower rooms and
compartments, toilet rooms and pools shall be thoroughly cleaned and disinfected as
needed, and at least once each day the premises are open, with a disinfectant approved
by the Health Department. Bathtubs shall be thoroughly cleaned after each use. All
walls, ceilings, floors, and other physical facilities for the establishment must be in good
repair and maintained in a clean and sanitary condition. (2395-11/79, 3267-9/95)
(j} Instruments utilized in performing massage shall not be used on more than one (1)
patron unless they have been sterilized using approved sterilizing methods. (2395-11/79,
3267-9/95)
(k) Where a covering is furnished by the massage establishment, it shall not be used by
more than one (1) patron until it has first been laundered and disinfected. (2395-11/79,
3267-9/95)
(1) The owner or operator of the massage establishment shall keep a complete and current
list of the names and residence addresses of all massage technicians and employees of
the massage establishment and the name and residence addresses of the manager or
managing employee purported to be principally in charge of the operation of the
massage establishment. This roster shall be kept at the premises and be available for
inspection by officials charged with enforcement of this chapter. (3267-9/95)
(m)Every massage establishment shall keep a written record of the date and hour of each
treatment administered, the name and address of each patron,the name of the massage
therapist administering treatment, and the type of treatment administered, to be recorded
on a patron release form. Such written record shall be open to inspection by officials
charged with the enforcement of this chapter. Such records shall be kept on the premises
of the massage establishment for a period of two (2) years. (3267-9/95)
(n) The owner/operator of each massage establishment shall file with the City Clerk,
documents issued by an insurance company authorized to do business in the State of
California evidencing that the permittee is insured under a liability insurance policy
providing minimum coverage in an amount set by resolution of the City Council for
injury or death to one person arising out of the operation of any massage establishment
and the administration of a massage, and shall be kept in full force and effect at all times
by such owner or operator. Proof of such insurance shall be kept on the premises at all
times. (3267-9/95)
(o) No part of the establishment shall be used for residential or sleeping purposes. No
cooking or food preparation shall be allowed on the premises unless a full service
kitchen is installed. Such a kitchen shall be for the sole use of employees, and shall be
installed in an"employees only" area. The full service kitchen shall have a minimum of
a sink with hot and cold running water, a refrigerator, a stove and sufficient cabinets to
store cooking utensils. (3267-9/95)
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Ordinance No. 3694
(p) No person shall enter, be, or remain in any part of a massage establishment while in the
possession of, consuming, or using any alcoholic beverage or drug except a prescription
drug. The responsible owner, operator,managing employee, manager or permittee shall
not permit any such person to enter or remain upon such premises. (2395-11/79,3267-9/95)
(q) Every massage establishment shall be open at all times during hours during which
massage is being provided for inspection by any officer of the City of Huntington Beach.
(2395-11179, 3267-9/95, 3467-6/00)
(r) All exterior doors shall remain unlocked from the inside during business hours. All
doors leading to the business or leading to the customer areas are to remain unlocked
during business hours. (2395-11/79, 3267-9/95)
(s) No massage establishment shall simultaneously operate as a school of massage, or share
facilities with a school of massage. (2395-11/79, 2466-2/81, 3267-9/95)
SECTION 8. Section 5.24.225 is hereby added to the Huntington Beach Municipal Code,
said section to read as follows:
5.24.225 Other business establishments providing massage. Those businesses that provide
massage, as defined herein, to paying customers, said service representing less than fifty
percent(50%) of the activity carried on at the business, must comply with Sections 5.24.160
(a)-(g), and (i), and 5.24.170(a), (b), (e), (f), (h), (1), 0) (k), (p), (q), (r) and (s) of this
Chapter.
(a) No massage, as defined in this Chapter, shall be provided in a hotel or motel room or in
a private residence or business not providing massage services without a permit issued
pursuant to this Chapter.
(b) In a private residence or business not providing massage services, no massage may be
provided between 7:00 p.m. and 8:00 a.m.
(c) In the case of a business which does not provide massage services:
1. No alcohol may be served any where on the premises where a massage is being
performed;
2. Both patron and technician must be fully clothed;
3. No massage shall be performed behind closed doors.
SECTION 9. Section 5.24.260 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.24.260 Appeal procedure.
(a) .Any permittee whose permit has been revoked, suspended, or not renewed by the Chief of
Police or any applicant whose request for a permit has been denied may contest the decision of
the Chief of Police by filing a request for an Administrative Hearing. To obtain a hearing, a
signed written request must be made indicating the grounds for contesting the decision.
03ord/chap 5-24 ord/9/27/04 7
Ordinance No. 3694
(b) To be effective and complete,the request must be received by the City Attorney within
15 days of the date the written notice of decision was received. The notice will be
deemed received if not returned within ten (10) days of mailing. All requests for a
hearing shall be date stamped upon receipt. The City Attorney is authorized to designate
an address to which such requests shall be mailed in satisfaction of this subsection. The
City Attorney, or his/her designee, shall schedule a hearing to be held within fifteen (15) -
days after the filing of the notice of appeal. Notice of the date, time and place of the
hearing shall be mailed, postage prepaid, at least ten (10) days prior thereto to the
permittee at the address given in the notice of appeal, or if none is provided, to the
address set forth in the permit application.
(c) The person requesting the Administrative Hearing may file a written declaration with the City
Attorney before the hearing or personally attend the hearing on the date,time and place
specified. A failure to file a written declaration before the hearing or personally attend the
hearing, unless continued pursuant to this Chapter, will be considered a non-appearance. Non-
appearance shall constitute an abandonment of the request, for the hearing. The failure to
appear by the appellant shall be noted on the Notice of Decision by the Hearing Officer which
will be mailed to the permittee by the City Attorney.
SECTION 10. Section 5.24.270 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.24.270 Appeal--Hearing. The following rules of evidence shall apply:
(a) Oral evidence shall be taken only under oath or affirmation. The hearing officer shall
have authority to administer oaths, and to receive and rule on admissibility of evidence.
(b) Each party shall have the right to call and examine witnesses,to introduce exhibits, and
to cross-examine opposing witnesses who have testified under direct examination. The
hearing officer may call and examine any witness.
(c) Technical rules relating to evidence and witnesses shall not apply to hearings provided
for herein. Any relevant evidence may be admitted if it is material and is evidence
customarily relied upon by responsible persons in the conduct of their affairs regardless
of the existence of any common law or statutory rule which might make admission of
such evidence improper over objection in civil actions. Hearsay testimony maybe used
for the purpose of supplementing or explaining any evidence given in direct
examination, but shall not be sufficient in itself to support a finding unless such
testimony would be admissible over objection in civil actions. The rules of privilege
shall be applicable to the extent that they now, or are hereafter permitted in civil actions;
and irrelevant, collateral, undue, and repetitious testimony shall be excluded. (2395-11179,
2726-10184)
(d) The hearing shall be conducted by a Hearing Officer either: (i) on the date, time and place
specified in the notice, or(ii) on the date designated on the original notice of decision by the
Chief of Police.
(e) The City Attorney's Office or the City Attorney's designee shall ensure that the pertinent
records are delivered to the Hearing Officer for the hearing. The City Attorney's Office, or the
03ord/chap 5-24 orW9/20/04 8
Ordinance No. 3694
City Attorney's designee, shall also make available to the appellant before the hearing a copy of
any additional reports that are provided to the Hearing Officer.
(f) Any reports prepared by the Police Department concerning the denial, suspension, or revocation
of the permit that are provided to the Hearing Officer shall be accepted by the Hearing Officer
as prima facie evidence of the reasons for such action on the permit and the facts stated in such
documents.
(g) Neither the Police Officer who denied, revoked or suspended the permit nor any other
representative of the City shall be required to attend the hearing, nor shall the Hearing Officer
require that there be submitted any evidence, other than the reasons for denial stated in the
documents presented to the Hearing Officer, that may exist among the public records of the
City. However, any such appearance and/or submission may be made at the discretion of any
City employee or agent.
(h) The Hearing Officer may continue a hearing if a request is made showing good cause by the
appellant or a representative of the City. All continuance requests shall either: (i)be made in
person at the hearing by the appellant or his or her representative if the appellant is physically
unable to attend, or (ii) be made by a written request received by the City Attorney at least 24
hours before the hearing date. If the continuance is granted, a new hearing date shall be set
within 45 days. If the continuance is denied, the hearing shall proceed then and there as
scheduled, and if the appellant is not present the request(s) shall be deemed abandoned in
accordance with the subsection below. The Hearing Officer's decision is final and he or she
shall either personally give the Notice of Decision to the appellant or the representative if
present at the end of the hearing or request that the notice be mailed by the City Attorney.
(i) The hearing shall be conducted informally and the legal rules of evidence need not be followed.
The Hearing Officer does not have the authority to issue a subpoena.
(j) Abandonment of the request for hearing, constitutes a failure to exhaust administrative
remedies.
SECTION 11. Sections 5.24.275 and 5.24.285 are hereby added to the Huntington Beach
Municipal Code, said sections to read as follows:
5.24.275 Administrative Hearing Decision.
(a) After considering all the evidence and testimony submitted at the administrative hearing, the
Hearing Officer shall issue a written decision to uphold or reverse the decision on the permit.
The Hearing Officer has no discretion or authority to issue a permit. The decision will be made
on a Notice of Decision form and will state the reasons and evidence considered for the
decision. The decision of the Hearing Officer shall be made at the conclusion of the hearing
and shall be final. The Notice of Decision for the Administrative Hearing shall be delivered to
the appellant at the conclusion of the hearing.
(b) The Hearing Officer's continued employment, performance evaluation, compensation, and
benefits shall not directly or indirectly be linked to the decision rendered.
03ord/chap 5-24 ord/9/20/04 9
Ordinance No. 3694
5,24,285 Riyht to Judicial Review.
(a) The appellant may seek judicial review of the Administrative Hearing decision by filing an
appeal with the West Justice Center of the Superior Court within 20 calendar days after the
appellant receives a copy of the Notice of Decision at the conclusion of the hearing. The
appeal filed with the court must also contain a proof of service showing a copy of the appeal _
was served upon "City of Huntington Beach (Attention: City Attorney).
(b) The City Attorney shall forward to the Court within 15 days of its request, the pertinent
documents for any case appealed to that court.
SECTION 12. This ordinance shall become effective 30 days after its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular
meeting thereof held on the 3ra day of Ja nu ry , 2005M.4-0�t—k—
a
ATTEST:
APPROVED AS TO FORM:
City Clerk r
City Attorney JU
REVIEWED AND APPROVED:
INITIATED AND APPROVED:
Cit Administrator l.. /aCruito C44112-P=
Chief of Poli e
03ord/chap 5-24 ord19/20/04 10
Ord. No. 3694
STATE OF CALIFORNIA )
COUNTY OF ORANGE
CITY OF HUNTINGTON BEACH )
1, JOAN L. FLYNN, the duly elected, qualified City Clerk of the City of
Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby
certify that the whole number of members of the City Council of the City of Huntington
Beach is seven; that the foregoing ordinance was read to said City Council at a regular
meeting thereof held on the 20th day of December, 2004, and was again read to said
City Council at a regular meeting thereof held on the 3rd day of January, 2005, and
was passed and adopted by the affirmative vote of at least a majority of all the members
of said City Council.
AYES: Hansen, Coerper, Sullivan, Hardy, Green, Bohr, Cook
NOES: None
ABSENT: None
ABSTAIN: None
I,Joan L.Flynn,CITY CLERK of the City of Huntington
Beach and ex-officio Clerk of the City Council,do hereby
certify that a synopsis of this ordinance has been
published in the Huntington Beach Fountain Valley
Independent on January 13,2005
In accordance with the City Charter of said City
Joan L. FIM,Qi1y Clerk y Clerk and ex-offici Jerk
• Deputy City Clerk of the City Council of the City
of Huntington Beach, California