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HomeMy WebLinkAboutMassage Establishments - Ordinance 3973 - Amends Chapter 5.2 CITY OF HUNTINGTON BEACH LEGAL NOTICE OROINAKE NO.3973 Adopted by the City(mcil on APML 15,2013 f PR O OF "AN ORDINANCE OF THE CITY OF HUNTINGTON- B EACH AMENDING CHAPTER 5.24 OF THE ��dd HUNTINGTON •BEACH MUNICIPAL CODE RE- LATING TO MASSAGE ESTABLISHMENTS" SYNOPSIS: n�ovember, 2009, the STATE OF CALIFORNIA) City Council approved regulatory,changes with regard to massage es- tablishments to comply with newly enacted ) state law resulting in COUNTY OF ORANGE California Business and Professions Codes 4600, et seq. These laws significantly re- duced local- govern- am a citizen of the United States and a ments regulatory thority in licensing, resident of the County of Los Angeles; I permitting, and land am over the age of eighteen years, and use the and of a Staatt e operated, non- profit agency with legis- not a party to or interested in the notice lative oversight called the. California Massage published. I am a principal clerk of the Therapy .C o u n c i l (CAMTC). Most-of the HUNTINGTON BEACH licensing and mon- INDEPENDENT, which was adjudged a werre'e, responsibilities . we transferred from the City to the State newspaper:: of : general circulation . on with the goal _of September,.29, 1961, case A6214, and in th ing consistency n the' application of , rules and regulations June 11, 1963, "case. A24831; for the with respect to busi- nesses and individuals City of. Huntington Beach, County of i involved in the massage therapy field. The Orange, and the State of California. changes approved by Council included modifi- Attached. to this Affidavit is a true and cation torthe Hunting- complete copy as was printed and ton Beach zoning and Subdivision. Ordina"nce(Hb ' published on the following date(s): Code C) and Municipal Code Chapter 5.24 to bring the City's reg- ulations- into comp -, y ance with State law. Thursday, April 25, 2013 Since the State law went into effect there has been a substantial increase,in the number of massage establish- ments in Huntington Beach. The number of I certify (or declare) under penalty establishments has in- of perjury that the foregoing is true tooeapproximately nsixty' five (65)..Based on in- and correct. formation available to the police department, -illicit sexual activity in massage establish- ments located in Hun- tington Beach. has also increased'substantially. Executed on May 1 , 2013 This ordinance is n attempt to strengtheen the local oversight.of at Los Angeles, California these establishments. because oversight of the Huntington Beach locations by the CAMTC annears_to.-be:both_in- Or"I . P 3 sxM I auzll ssa.rd*alqu um aims ails inq j y�, .za�sulu�saM Signature MaIA u-13aao „•sn,m gal a3?I IIRS to uWal atpio Isaz uoa 01 szotuas MO 'Mou It BPd •sumo' unaop auzOa 01 ut p aam.i [an&aii -flpaz';Tuttle izaAJ 01 -101 L' Ups sT s,w atu PIol I„ 'It'Tj1 aI>'arput 2,,,aq azaA, Y / Dept. ID PD-13-002 Page 1 of 3 Meeting Date:4/1/2013 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 4/1/2013 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Kenneth W. Small, Chief of Police SUBJECT: Approve for introduction Ordinance No. 3973 amending Chapter 5.24 of the Huntington Beach Municipal Code (HBMC). The proposed amendment augments current state law and enhances the City's ability to regulate massage businesses operating in Huntington Beach. Statement of Issue: Transmitted for your consideration is a proposal to amend Chapter 5.24 of the Huntington Beach Municipal Code. The proposed amendment augments current state law and enhances the City's ability to regulate massage businesses operating in Huntington Beach. Financial Impact: Not applicable. Recommended Action: Approve for introduction Ordinance No. 3973, "An Ordinance of the City of Huntington Beach Amending Chapter 5.24 of the Huntington Beach Municipal Code Relating to Massage Establishments." Alternative Action(s): Deny the recommended amendment to Municipal Code Chapter 5.24 retaining the current law as written. Analysis: In November, 2009, the City Council approved regulatory changes with regard to massage establishments to comply with newly enacted state law resulting in California Business and Professions Codes 4600, et seq. These laws significantly reduced local governments' regulatory authority in licensing, permitting, and land use by the formation of a State operated, non- profit agency with legislative oversight called the California Massage Therapy Council (CAMTC). Most of the licensing and monitoring responsibilities were transferred from the City to the State with the goal of achieving consistency in the application of rules and regulations with respect to businesses and individuals involved in the massage therapy field. The changes approved by the City Council included modifications to the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) and Municipal Code Chapter 5.24 to bring the City's regulations into compliance with State law. Since the State law went into effect there has been a substantial increase in the number of massage establishments in Huntington Beach. The number of establishments has increased from nine (9) to approximately sixty-five (65). Based on information available to the police department, illicit sexual activity in massage establishments located in Huntington Beach has also increased substantially. The proposed amendment to the ordinance is an attempt to strengthen the local oversight of these establishments because oversight of the Huntington Beach locations by the CAMTC appears to be both inadequate and ineffective. Item 10. - I HB -342- Dept. ID PD-13-002 Page 2 of 3 Meeting Date:4/1/2013 The Police, Planning and Finance Departments worked with the City Attorney's Office to draft a proposal to provide for the legitimate regulation of massage businesses and practitioners to the extent allowable under the state law. Per Business and Professions Code section 4612(b)(4), local governments do have the legal authority to impose requirements and regulate massage businesses and practitioners in the same manner as other professional service businesses. The proposed ordinance borrows from other cities in California which are facing similar issues and attempts to regulate without being onerous. The proposed ordinance requires the certification of businesses and individuals engaged in massage therapy in the city. Some of the provisions of the proposed ordinance include, but are not limited to: 1) Specific instructions on how certification is obtained including what information needs to be provided to the City when applying for certification. 2) Certified Massage Businesses shall employ only Certified Massage Practitioners who have met the requirements of the CAMTC. 3) If an applicant owner, operator, corporation or partner owns 5% or more of the massage business and is not state certified, the City shall conduct a background check of that owner, operator, corporation or partner. 4) Certification may be denied if the background check for any applicantlowner reveals convictions of certain crimes including those requiring one to register under the provisions of Section 290 of the California Penal Code. 5) The mechanism for appealing the denial of certification. 6) The owner/applicant shall sign a statement indicating they are responsible for the conduct of all employees or independent contractors working on the premises and acknowledging that failure to comply with the California Business and Professions Code section 4600, et seq. with any local, state or federal law, or with the provisions of the chapter may result in the suspension or revocation of the City's Registration Certificate. 7) Additional provisions detailing when a Registration Certificate issued to a Certified Massage Business or Individual may be suspended or revoked. 8) The hearing process to appeal a suspension or revocation hearing. 9) A massage business Registration Certificate shall not be transferable except with the written approval of the City. 10)No massage establishment shall be established at a location where a massage establishment was closed due to conduct which violated any provisions of Chapter 5.24 of the H.B.M.C., for a period of one year following such closure. 11)Violation of any provisions of this chapter shall be deemed a misdemeanor unless reduced to an infraction by the City Attorney's Office. Subsequent to the initial reading of the proposed ordinance at the March 4, 2013 City Council Meeting, additional staff work was conducted and further communication occurred between city staff and members of the California Massage Therapy Council. As a result, the following changes were made resulting in the attached proposed ordinance; The following requirements as part of the Establishment Registration Certificate application have been removed (Section 5.24.025): • Requirement to provide the name and address of the owner and lessor. • Requirement to provide a copy of the current lease agreement, property owner's name, business name, valid mailing address and phone number. • Requirement to provide a signed statement that all persons on the establishment premises will be state certified. • Requirement for the Planning Department to conduct a zoning consistency check. HB -343- Item 10. - 2 Dept.ID PD-13-002 Page 3 of 3 Meeting Date:4/1/2013 The following requirement as part of the Health and Safety Requirements section has been removed (Section 5.24.045): • Providing separate bathing, dressing, massage rooms and toilet facilities if serving both male and female patrons simultaneously. The following portions of the Massage Establishment Operation requirements have been amended (Section 5.24.050): • Added requirement to post original CAMTC certificate and have identification on his or her person while providing massage services. • Changed operating hours from between 7:00 A.M. to 9:00 P.M. to between 8:00 A.M. to 11:00 P.M. • Removed requirement to post a list of services and their prices. • Removed requirement for each employee to wear the actual CAMTC issued ID card as a name tag while working. • Removed requirement to have the owner of establishment keep current list of residence addresses of all employees. • Added requirement for owner of establishment to keep current list of all employees CAMTC Certificate numbers. • Removed requirement for establishment to keep detailed record of each treatment provided including the name and address of each patient. • Removed requirement prohibiting any person possessing or consuming drugs or alcohol while in establishment. • Removed restriction on establishment simultaneously operating as a school of massage. The following portions of the Massage Establishment Prohibited Conduct section have been modified (Section 5.24.060): • Removed restriction that a person of one sex could not be massaged in view of a person of the opposite sex. • Removed restriction that no more than one male and one female may be massaged in same treatment room. Upon adoption of the amended ordinance, all existing and new massage business owners conducting business or desiring to practice in the City of Huntington Beach will have to apply for registration certification. The registration shall be valid for one year, coinciding with the city business license effective and expiration dates. Environmental Status: N/A Strategic Plan Goal: Maintain Public Safety Attachment(s): 1. Ordinance No. 3973, "An Ordinance of the City of Huntington Beach Amending Chapter 5.24 of the Huntington Beach Municipal Code Relating to Massage Establishments." 2. Legislative Draft of Huntington Beach Municipal Code Chapter 5.24. Item 10. - 3 HB -344- ATTACHMENT # 1 ORDINANCE NO. 3973 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 5.24.010 of the Huntington Beach Municipal Code is hereby amended to read as follows: 5.24.010 Definitions. Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this Chapter. (a) "Applicant"means an applicant for an Establishment Registration Certificate. (b) "California Massage Therapy Council" or"CAMTC"means the State nonprofit organization created to regulate and issue massage practitioner and therapist certificates pursuant to California Business and Professions Code Section 4600, et seq. (c) "Certified" shall mean any valid certificate issued in accordance with Sections 2600 through 4620 of the California Business and Professions Code. (d) "Certified Massage Business"means any business that possesses a valid city business license and an Establishment Registration Certificate, and where the only persons employed or used by that business to provide massage services have current and valid State Certifications. (e) "Certified Massage Practitioner"means any person holding a current and valid State Certificate issued by the California Massage Therapy Council pursuant to California Business and Professions Code Section 4600 et seq., whether as a massage practitioner or massage therapist, as defined therein. (f) "Certified Sole Proprietorship"means any massage business where the owner is the only person employed or used by that business to provide massage services and the owner has a current and valid State Certification and an Establishment Registration Certificate. (g) "City"means the City of Huntington Beach. (h) "Chief of Police or Designee" shall mean the person or persons designated to administer the provisions of this Chapter. (i) "Compensation" shall mean the payment, loan, advance, donation, contribution, deposit, or gift of money or anything of value. 13-3638/91838 1 Ordinance No. 3973 (j) "Employee"means any person, other than a massage practitioner, manager or owner or operator, who renders any service, with or without compensation, to the owner or operator of a massage establishment relating to the day-to-day operation of the massage establishment whether as an employee or independent contractor. (k) "Establishment Registration Certificate—Business" or "Business Registration Certificate" means a certification issued by the Chief of Police upon submission of satisfactory evidence as required that a massage business or sole proprietorship employs or uses only certified massage therapists or practitioners possessing valid and current State Certifications and has satisfied all other requirements pursuant to the provisions of this Chapter. (1) For purposes of this Chapter, the terms "massage" and"bodywork" shall have the same meaning. (m)"Massage", "massage therapy", or "bodywork"means any method of pressure on, or friction against or stroking,kneading, rubbing, tapping,pounding, vibrating, or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus or appliance, or with or without supplementary aids such as rubbing alcohol, liniment, antiseptic, oil,powder, cream, ointment, or other similar preparations commonly used in this practice. (n) "Massage establishment" means any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, or combination of individuals, engages in, conducts, carries on or permits to be engaged in, conducted or carried on, massages, baths, or health treatments involving massage or baths. (o) "Massage therapist," "bodyworker," "bodywork therapist," or "massage and bodywork therapist"means a person who is certified by the California Massage Therapy Council under Subdivision (c) of Section 4601 of the California Business and Professions Code, and who administers massage for compensation. (p) "Massage practitioner," "bodywork practitioner," or"massage and bodywork practitioner"means a person who is certified by the California Massage Therapy Council under Subdivision(b) of Section 4601 of the California Business and Professionals Code, and who administers massage for compensation. (q) "Operator"means the individual who manages the massage establishment. Evidence of management includes but is not limited to evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules or purchase supplies. An operator may also be an owner. (r) "Organization"means the California Massage Therapy Council created pursuant to Sections 4600-4620 of the California Business and Professions Code. (s) "Owner"means the individual(s) whose name appears on the City of Huntington Beach business license. (t) "Registered Certificate Holder"means a business that has been issued an Establishment Registration Certificate by the City's Chief of Police. (u) "State Certification" or"State Certificate"means a valid and current certification properly issued by the CAMTC pursuant to California Business and Professions Code Section 4600, et seq. 13-3638/91838 2 Ordinance No. 3973 SECTION 2. Section 5.24.015 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.015 Authority. The Chief of Police or Designee shall have the power and authority to promulgate rules, regulations, and requirements consistent with the provisions of this Chapter and other law in connection with the issuance of an Establishment Registration Certificate. The Chief of Police or Designee shall have authority to make decisions, investigate and take action under this Chapter. SECTION 3. Section 5.24.020 of the Huntington Beach Municipal Code is hereby amended to read as follows: 5.24.020 Massage Certification/Establishment Registration Certificate Required. It shall be unlawful for any person, association,partnership, corporation or other entity to engage in, conduct or carry on,permit to engage in, in or upon any premises within the City of Huntington Beach the business of providing massages in exchange for compensation without being currently certified as a massage practitioner or massage therapist by the California Massage Therapy Council in accordance with Sections 4600 through 4620 of the California Business and Professions Code and be a Certified Massage Business as described in 5.24.010(d)herein. SECTION 4. Section 5.24.025 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.025 Application for Establishment Registration Certificate. (a) An application for an Establishment Registration Certificate shall be filed on forms provided by the City, submitted under penalty of perjury, and shall include the following information: (1) The full, true name under which the business will be conducted. (2) The full true name of the applicant. (3) A complete statement listing and explaining any and all aliases and fictitious names used by the applicant within the last ten(10) years. (4) The present or proposed business address where the business is to be conducted. (5) A complete description of all services to be provided at the proposed massage establishment. (6) Business Entity Type. (7) Tax ID number used for the income tax reporting for the business applying for. (8) The residence address of the applicant. (9) Date of Birth. (10) Social Security Number. (11) A valid and current driver's license and/or identification card issued by a state or federal government agency or other photographic identification bearing a bona fide seal by a foreign government. (12) The original valid and current State Certificate issued by CAMTC. If establishment owner is not State certified,a valid State Certificate must be provided for an employee or independent contractor. 13-3638/91838 3 Ordinance No. 3973 (13) The original valid and current ID Card issued by CAMTC. If establishment owner is not State certified, a valid ID Card must be provided for an employee or independent contractor. (14) The name and address of any massage business or other like business owned or operated by any person whose name is required to be given pursuant to this section for the ten(10) years immediately preceding the filing of the application. (15) A description of any other business to be operated on the same premises, or on adjoining premises, owned or controlled by the applicant. (16) A signed statement authorizing the City, its officers, agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and to ensure continual compliance with all applicable provisions of law. (17) A signed statement that the business owner shall employ only State Certified Massage Practitioners or Therapists to provide massage services. (18) A signed statement that all independent massage practitioners on the establishment premises will be in possession of a valid current city business license. (19) Completed Fingerprinting and background check for any business owner or operator applying for an Establishment Registration Certificate who is not otherwise certified by CAMTC. (20) Payment of an Establishment Registration Certificate fee set by council resolution. (b) An Applicant who is a business owner, operator or sole proprietor and who is not CAMTC certified, must submit current background and fingerprint information to determine whether the Applicant has any of the following: (1) All convictions for any crime involving conduct which requires registration under California Penal Code Section 290 (Sex Offender Registration Act). (2) Convictions for violations of California Penal Code Section 266i (pandering), 315 (keeping or residing in house of ill-fame), 316 (keeping disorderly house), 318 (prevailing upon person to visit place for gambling or prostitution), 647(b) (prostitution); 653.23 (supervision of a prostitute); 415 (disturbing the peace). (3) Convictions of any felony offense involving the sale of a controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code. (4) Convictions of crimes designated in Government Code Section 51032, or any crime involving dishonesty, fraud, deceit, violence or moral turpitude. (5) All injunctions for nuisances under Penal Code Section 11225-11235. (6) Convictions in any other state of any offense which, if committed or attempted in this state,would have been punishable as one or more of the referenced offenses of this subpart. (7) Conspiracy or attempt to commit any such offense described in subsections (1)-(6) of this subpart. (c) The applicant, corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer/employee. Such person shall complete and sign all application forms required of an individual applicant under this Chapter. The corporation's or partnership's responsible managing officer must, at all times meet all of the 13-3638/91838 4 Ordinance No.3973 requirements set by this Chapter or the corporation's or partnership's Establishment Registration Certificate shall be suspended until a responsible managing officer who meets such requirements is designated. If no such person is designated within ninety (90) days, the corporation's or partnership's Establishment Registration Certificate is deemed canceled and a new application for registration must be filed. (d) A signed statement that the owner/applicant shall be responsible for the conduct of all employees or independent contractors working on the premises of the business and acknowledging that failure to comply with California Business &Professions Code section 4600, et seq. with any local, state or federal law, or with the provisions of this Chapter may result in the revocation of the Establishment Registration Certificate. (e) Payment of a nonrefundable registration fee in an amount established by resolution of the City Council. (f) Upon receipt of the completed application, the Chief of Police or Designee shall refer the application to other City departments that may inspect the premises proposed to be used as a massage business and shall make a written recommendation to the Chief of Police or Designee concerning compliance with the respective requirements. (g) The Chief of Police or Designee shall have up to sixty (60) Calendar days after the submission of all required information to complete an investigation. SECTION 5. Section 5.24.030 of the Huntington Beach Municipal Code is hereby amended to read as follows: 5.24.030 Massage establishment or services—Business License Required. (a) Any person, association, corporation,partnership or other entity desiring to operate a massage establishment or provide massage services shall obtain a business license and provide the following relevant information: (1) Full name of certificate holder (if applicable). (2) Date of Birth. (3) State issued identification number(if applicable). (4) Social Security Number. (5) Home address and phone number. (6) Work address and phone number. (7) Color photograph of the certificate holder. (8) Proof of State certification for those who will provide massage services. (b) Prior to submitting the massage business license application,the fees as established by resolution of the City Council shall be paid to the City of Huntington Beach. (c) The application for the massage business license does not authorize operation of a massage establishment or performing massage services until the business license is issued. 13-3638/91838 5 Ordinance No.3973 (d) It shall be the responsibility of each massage business owner or operator to file copies or provide other evidence of the certificates held by the persons who are providing massage services at the business. (e) It shall be the responsibility of each massage business owner or operator to notify the City of any intention to rename, change management, or convey the business to another person. SECTION 6. Section 5.24.035 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.035 Approval or denial of Establishment Registration Certificate. (a) An Establishment Registration Certificate shall be issued by the Chief of Police or Designee to any Certified Sole Proprietorship that demonstrates all of the following: 1. The operation, as proposed by the applicant, if permitted, would comply with all applicable laws, including,but not limited to,the City's building, zoning, business license, and health regulations and all requirements listed in this Chapter; 2. The owner is the only person employed or used by that business to provide massage services; 3. The owner holds a valid and current State Certificate issued pursuant to Chapter 10.5 of the California Business & Professions Code and that the owner/applicant is the same person to whom the CAMTC issued a valid and current State Certificate and identification card; 4. The applicant possesses a valid business license issued pursuant to the Huntington Beach Municipal Code; and 5. The applicant has not failed to provide information, assurances, or documentation required by this Chapter, has not failed to reveal any fact material to qualification, or has not supplied information that is untrue or misleading as to a material fact pertaining to the qualification criteria. (b)An Establishment Registration Certificate shall be issued by the Chief of Police or Designee to any Certified Massage Business that demonstrates all of the following: 1. The operation, as proposed by the applicant, if permitted, would comply with all applicable laws, including, but not limited to,the City's building, zoning, business license, and health regulations and all requirements listed in this Chapter; 2. The massage business employs or uses only Massage Practitioners with CAMTC State Certificates whose certifications are valid and current and that owners of the State Certificates are the same persons to whom CAMTC issued valid and current identification cards; and 3. The applicant has provided all information, assurances, or documentation required by this chapter,has not failed to reveal any fact material to qualification, and has not supplied information that is untrue_ or misleading as to a material fact pertaining to the qualification criteria. 13-3638/91838 6 Ordinance No. 3973 (c) The background check for any applicant/owner authorized by this Chapter shows that such person has not been required to register under the provisions of Section 290 of the California Penal Code; there exists no probable cause to believe a violation of the crimes indicated in section 5.24.025(b)herein or California Penal Code Section 415; has not had an individual or business permit or license with any agency, board, city, county, territory, or state, denied, revoked, restricted, or suspended within the last five (5) years; and has not been subject to an injunction for nuisance under Penal Code Section 11225-11235 within the last five (5) years. (d) The Chief of Police or Designee may deny issuance of an Establishment Registration Certificate for non-compliance with any of the above described requirements. SECTION 7. Section 5.24.040 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.040 Exemptions. Exemptions do not apply to independent contractors of the listed exempted professionals. The provisions of this Chapter shall not apply to the following classes of individuals or groups while engaged in or performing the duties of their respective professions: (a) Physicians, surgeons, chiropractors, osteopaths, acupuncturists, and physical therapists duly licensed to practice in the State of California. (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. (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. (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 13-3638/91838 7 Ordinance No.3973 professional, as defined in this section, must be present at all times when a student is performing their duties. (i) Owners of stand alone hotels with more than 100 on-site rooms for rent and which provide massage services for their guests on site by a state certified massage practitioner or therapist. SECTION 8. Section 5.24.045 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.045 Health & Safety Requirements. All premises of a Certified Massage Business shall be subject to periodic inspection by the City for compliance with health, safety, and building standards and all such establishments shall comply with the following requirements: (a) Si- 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. (c)Equipment- adequate equipment acceptable to the Orange County Health Department 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. (e) Linen storage - closed cabinets shall be provided and utilized for storage of clean linens, and approved receptacles acceptable to the Orange County Health Department shall be provided for the deposit of soiled linen. (f) 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 the Orange County Health Department. SECTION 9. Section 5.24.050 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.050 Massage establishment operation. Every massage establishment shall comply with the following operating requirements: (a) (1) Each person employed or acting as a massage therapist or massage practitioner shall have a valid certificate issued by the California Massage Therapy Council, the original of which shall be conspicuously posted in public view. The Certificate Holder shall have his or her identification card in his or her possession while providing massage services. 13-3638/91838 8 Ordinance No. 3973 (2) It is unlawful for the owner, operator,responsible managing employee, manager or certificate holder in charge of or in control of the massage establishment to employ or permit a person to act as a massage therapist or massage practitioner who does not possess a valid massage therapist or massage practitioner certificate issued by the California Massage Therapy Council. (3) No business, except those exempted under section 5.24.040 herein, may employ anyone to provide massage or allow anyone to massage unless the massage provider possesses a valid massage certificate issued by the California Massage Therapy Council. (b)No massage establishment shall operate nor shall any massage be administered in any massage establishment between the hours of 11:00 p.m. and 8:00 a.m. The hours of operation must be displayed in a conspicuous place in the lobby within the massage establishment and in any front window clearly visible from outside the establishment. (c) Any massage establishment or business shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services are certified by the California Massage Therapy Council. (d) Massage therapists and massage practitioners 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. (e)Areas where massages are to be performed shall be separated by a non-lockable door unless there is no staff available to assure security for clients and massage staff who are behind closed doors. 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. (f) 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. (g) 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 Orange County 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. (h) Instruments utilized in performing massage shall not be used on more than one(1) patron unless they have been sterilized using approved sterilizing methods. (i) 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. L 13-3638/91838 9 Ordinance No. 3973 (j) The owner or operator of the massage establishment shall keep a complete and current list of the names and CAMTC Certificate numbers of all massage therapists, massage practitioners 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. (k)No part of the establishment shall be used for residential or sleeping purposes. (1) Every massage establishment shall be open during hours when massage is being provided for inspection by any officer of the City of Huntington Beach. (m) All doors leading into a massage establishment or area where massages are being performed shall remain unlocked during business hours unless there is no staff available to assure security for clients and massage staff who are behind closed doors. (n) The Owner shall have a continuing obligation to notify the Chief of Police in writing of any changes in massage practitioners and owners, operators or staff within seven(7) calendar days of such change. (o) Every massage business owner or operator shall report in writing immediately to the Chief of Police any and all changes of address or ownership of the massage business. SECTION 10. Section 5.24.055 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.055 Outcall Massages. No outcall massage, which is a massage in a private residence or at a location which does not regularly provide or permit massage, shall be conducted in a hotel or motel room, or in the private residence of the Certified Massage Practitioner. No outcall massage may be provided in a private residence or business not regularly providing massage services between 11 p.m. and 8 a.m. Notwithstanding the foregoing, a Certified Massage Practitioner is permitted to provide outcall massage services at a private residence so long as it is not the private residence of the Certified Massage Practitioner and is not provided between 11:00 p.m. and 8:00 a.m. SECTION 11. Section 5.24.060 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.060 Massage Establishment- Prohibited Conduct: (a) No alcoholic beverages shall be sold, served, or furnished on the premises of any massage establishment without a valid alcoholic beverage license from the State and conditional use permit from the City. (b) During the hours of operation, visitors shall not be permitted in massage therapy rooms except as follows: (1) the parents or guardian of a patron who is a minor child may be present in 13-3638/91838 10 Ordinance No.3973 the massage therapy room with that minor child; (2)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 (3) 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. (c) No operator shall hire, employ or allow a person to perform massage services unless such person possesses a valid CAMTC Certificate. Each Operator of a massage establishment shall verify that all persons hold the appropriate State Certificate required by this Chapter. (d) No electrical, mechanical or artificial device shall be used by any massage establishment staff for audio and/or video recording or for monitoring the performance of a massage, of the conversation of other sounds in the massage rooms, without the knowledge and written consent of the patron. (e) A massage therapist or massage practitioner shall not violate the provisions of Sections 647(a) and (b) of the California Penal Code, or any other state law involving a crime of moral turpitude, and such practices shall not be allowed or permitted by anyone. (f) A massage therapist or massage practitioner shall be fully clothed at all times and shall not expose their genitals, pubic area, buttocks, or in the case of female therapists or practitioners, their breasts, and such practices shall not be allowed or permitted by anyone. (g) A massage therapist or massage practitioner shall not massage, fondle, or otherwise have intentional contact with the genitals or anus of any patron, or the breasts of a female patron and such practices shall not be allowed or permitted by anyone. (h) A massage therapist or massage practitioner shall not give a massage unless the breasts of female patrons are covered and the genitals of all patrons are covered, and such practices shall not be allowed or permitted by anyone. SECTION 12. Section 5.24.065 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.065 Responsibility. The owner or operator of a massage business or establishment shall be responsible for the conduct of all employees or independent contractors working on the premises of the business. SECTION 13. Section 5.24.070 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.070 Inspection by City officials and notices of violation. (a) The investigating officials of the City, as designated by the Chief of Police, include, but are not limited to, representatives of the City's Police Department, Finance Department, Fire Department, Planning and Building Department and the County Health Officer, shall have the right to enter the premises from time to time during regular business hours prior to the 13-3638/91838 11 Ordinance No. 3973 issuance of an Establishment Registration Certificate and subsequently for the purpose of making reasonable inspections to enforce compliance with this Chapter and with building, fire, electrical, plumbing, and/or health and safety regulations. In the event an Establishment Registration Certificate has been issued, it may be revoked or suspended in the manner hereinafter set forth in this Chapter. (b) No person shall refuse to permit or interfere with, a lawful inspection or compliance check of the premises by City or County officials. (c) Whenever any City official inspects a massage business and finds that any provision of this Chapter has been violated, he or she shall give notice of such violation by means of an inspection report or other written notice including but not limited to issuing a citation for each and every violation of this Chapter or other applicable laws. In any such notification, the investigating person shall: (1) Set forth the specific violation or violations found, and shall notify the Registered Certificate Holder that failure to comply with any notice issued in accordance with the provisions of this Chapter may result in the revocation or suspension of the Establishment Registration Certificate. (2) The Registered Certificate Holder may be issued a warning that any future violation of this Chapter may result in suspension or revocation of the Establishment Registration Certificate or the City officials may establish a specific and reasonable period of time for the correction of the violation or violations. No time to correct need be given for health and safety violations or violation of criminal law. (3) The Registered Certificate Holder and operator shall take immediate action to correct violations and the City officials may re-inspect the business for compliance. SECTION 14. Section 5.24.075 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.075 Transfer of Establishment Registration Certificate. An Establishment Registration Certificate shall not be transferrable between persons or business owners. The change of business address shall be allowed on an Establishment Registration Certificate,providing that the same persons are listed as the business owner, the new business location complies with all provisions of this Chapter, and the location transfer fee is paid upon request of transfer from one business location to another business location. SECTION 15. Section 5.24.080 of the Huntington Beach Municipal Code is hereby added to read as follows: 13-3638/91838 12 Ordinance No. 3973 5.24.080 Establishment Registration Certificate Expiration and Renewal. An Establishment Registration Certification shall be valid for one year, coinciding with the city business license effective and expiration dates. SECTION 16. Section 5.24.085 of the Huntington Beach Municipal Code is hereby added to read as follows: 5 24.085 Revocation or Suspension of Establishment Registration Certificate—Massage Business. (a) An Establishment Registration Certificate may be suspended or revoked upon any of the following grounds: (1) There is probable cause to believe an owner, operator, corporation, or partner who owns five (5)percent or more of the massage business has committed a violation that could have caused denial of the Establishment Registration Certificate. (2) There is probable cause to believe a Registered Certificate Holder has made a material misrepresentation on the application for an Establishment Registration Certificate or renewal. (3) There is probable cause to believe the Registered Certificate Holder has engaged in conduct or operated the massage business or as a Massage Practitioner in a manner which violates any of the provisions of this Chapter, any conditions of the Establishment Registration Certificate, or any of the laws which would have been grounds for denial of the Establishment Registration Certificate. (4) The owner or operator of a Certified Massage Business employs or uses non-certified massage technicians to perform massage services. (5) Violations of this Chapter or of California Business&Professions Code section 4600, et seq. have occurred.on the business premises. (6) The Registered Certificate Holder has failed to comply with one or more of the health and safety requirements under this Chapter. (7) The Registered Certificate Holder has engaged in fraud, misrepresentation, or false statements in obtaining or maintaining an Establishment Registration Certificate. (b) No massage establishment shall be established at a location where a massage establishment was closed due to conduct which violated any of the provisions of this Chapter for 1 year. 13-3638191838 13 Ordinance No. 3973 SECTION 17. Section 5.24.090 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.090 Revocation or Suspension Hearin1j. (a) Notice of revocation or suspension shall contain a statement of the violation(s)which constitute the basis for suspension or revocation and information about the right to appeal and the necessity of an appeal as a prerequisite to litigation. The Registered Certificate Holder shall have ten(10) calendar days to appeal to the Chief of Police or Designee. (b) A hearing shall be scheduled with the Chief of Police or Designee upon not less than ten (10) calendar days notice to the Registered Certificate Holder. (c) Notice shall be given by personal service or certified or registered mail to the address shown on the last application or renewal. If reasonable attempts to otherwise serve are not successful, service may be provided by first class mail. (d) Service shall be deemed complete when personal service is made, when the certified letter is delivered, or when the decision is mailed by first class mail. (e) Unless otherwise specifically prohibited by law, the burden of proof is on the Registered Certificate Holder/applicant in any hearing or other matter under this Chapter. Formal rules of evidence shall not apply to the hearing. (f) If the Establishment Registration Certificate is suspended or revoked, the Establishment Registration Certificate shall be surrendered. SECTON 18. Section 5.24.095 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.095 Appeals from Revocation, Suspension or Denial of Establishment Registration Certificate. (a) Appeals from any decision of the Chief of Police under this Chapter shall be in writing, shall clearly state all applicable basis for the appeal, and shall be filed with the City Clerk not later than fifteen(15) calendar days following the date of notice of the decision. (b) The City Clerk shall not accept an appeal, and no hearing shall be held,unless the appellant has paid a filing fee, in an amount set by resolution of the City Council,to defray the cost of such appeal. Any appeal without the timely payment of fees shall be considered to be untimely. (c) The scope of the appeal hearing pursuant to this section shall be limited to those issues raised by the appellant in the written appeal, as submitted pursuant to subsection(a) of this section. 13-3638/91838 14 Ordinance No. 3973 (d) Upon receipt of a timely filed appeal, the City Clerk shall set the matter for hearing before the City Manager or Designee. The hearing shall be held not fewer than ten(10) calendar days and not more than thirty (30) calendar days from the date of the appeal request. The hearing may be continued from time to time upon the mutual consent of the parties. (e) The appellant shall be provided with notice of the time and place of the appeal hearing, as well as a copy of all relevant materials at least ten (10) calendar days prior to the hearing. SECTION 19. Section 5.24.100 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.100 Reapplication After Denial. No reapplication for an Establishment Registration Certificate will be accepted within one year after an application or renewal is denied or an Establishment Registration Certificate is revoked, provided that, if an Establishment Registration Certificate is denied for the sole reason that a massage practitioner does not possess a CAMTC certification, reapplication may occur after CAMTC certification has been attained. SECTION 20. Section 5.24.105 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.105 Violation—Penalty. Any person violating this Chapter shall be guilty of a MISDEMEANOR, punishable by a fine of one-thousand dollars ($1,000) or by imprisonment in the county j all for a period not to exceed six (6) months, or by both such fine and imprisonment. SECTION 21. Section 5.24.110 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.110 Separate Violations. Each violation described in sections 5.24.045, 5.24.050, 5.24.055 and 5.24.060 shall constitute a separate violation and each violation may be charged as a separate count in the event of administrative or criminal enforcement action. SECTION 22. Section 5.24.115 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.115 Unlawful Operation Declared Nuisance. 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. 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 abatement, removal or enjoinment thereof, in the manner provided by law. The City Attorney shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as shall abate or remove such massage establishment and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary to the provisions of this Chapter. 13-3638/91838 15 Ordinance No. 3973 SECTION 23. Section 5.24.341 is hereby added to Chapter 5.24, said section to read as follows: 5.24.341 Severabilitv. If any section, subsection,phrase or clause of this section is for any reason held to be invalid, such decision shall not affect the validity of the remaining portion of this section. The City Council declares that it would have adopted this ordinance and each section, subsection, phrase or clause thereof irrespective of the fact that any one or more sections, subsections, sentences, phrases or clauses be declared invalid. SECTION 24. Sections 5.24.150, 5.24.160, 5.24.170, 5.24.225, 5.24.230, 5.24.235, 5.24.240, and 5.24.340 shall be deleted in their entirety. SECTION 25. 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 15 t.h day of A P r i In ps , 2013. Mayor ATTEST: _ ,APPROVED TO FORM: City Clerk CiqAttokney REVIE : APPROVED: INITIA D AND ��{GT/�►6 �/�Ji3 //C�t anager Chief olice ` 13-3638/91838 16 Ord. No. 3973 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, 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 April 1,2013, and was again read to said City Council at a -Regular meeting thereof held on April 15, 2013, and was passed and adopted.by the affirmative vote of at least a majority of all the members of said City Council. AYES: Sullivan, Hardy, Harper, Boardman, Carchio, Shaw, Katapodis 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 April 25,2013. In accordance with the City Charter of said City Joan L. Flynn, Ci1y Cle CU Clerk and ex-officiA lerk Senior Deputy City Clerk of the City Council of the City of Huntington Beach, California ATTAC H M E NT #2 Ordinance No. 3973 Chapter 5.24 MASSAGE ESTABLISHMENTS (1213-6/66, 1293-3/67,2007-10/75,2187-6/77, Urg.2361-3/79, Urg.2394-8/79,2466-2/81,2726-10/84,3173-10/92,3267-9/95, 3467-6/00,3694-2/05,3716-7/05,3738-7/06, 3844-11/09,3876-5/10) Sections: 5.24.010 Definitions 5.24.015 Authority 5.24.020 Massage c-Certification/Establishment Registration Certificate rRequired 5.24.025 AMlication for Establishment Registration Certificate 5.24.030 Massage establishment or services—Business License rRequired 5.24.035 Approval or denial of Establishment Registration Certificate 5.24.040 Repealed Oidi, ., 39^^ i i ins T�.�,-���Ee�e. Exemptions 5.24.045 Health& Safety Requirements 5.24.050 Repealed Ofdina-nee No. 2444 "/0OMassage establishment operation 5.24.055 Outcall Massages 5.24.060 Massage Establishment—Prohibited Conduct 5.24.065 Responsibility 5.24.070 Repealed e 844 11/09Inspection by City officials and notices of violation 5.24.075 Transfer of Establishment Registration Certificate 5.24.080 Establishment Registration Certificate Expiration and Renewal 5 24.085 Revocation or Suspension of Establishment Registration Certifcate—Massage Business 5.24.090 Revocation or Suspension Hearing 5.24.095 Appeals from Revocation. Suspension or Denial of Establishment Registration Certificate 5.24.100 Repealed Or iiiance No.3944 1!AWeapplication After Denial 5.24.105 Violation—Penalty 5.24.110 Repealed-9rdi No.384411/09Separate Violations 5.24.115 Unlawful Operation Declared Nuisance 5.24.120 Repealed—Ordinance No. 2466- /81 5.24.125 Repealed—Ordinance No. 3844-11/09 5.24.130 Repealed—Ordinance No. 3844-11/09 5.24.140 Repealed—Ordinance No. 3267-9/95 . -rzo 5.24.190 Repealed—Ordinance No. 3844-11/09 5.24.200 Repealed—Ordinance No. 3844-11/09 5.24.210 Repealed—Ordinance No. 3844-11/09 5.24.220 Repealed—Ordinance No. 3844-11/09 c 24 225 OtAeall massages 5.24.240 elafien—�l� 5.24.250 Repealed—Ordinance No. 3844-11/09 5.24.260 Repealed—Ordinance No. 3844-11/09 5.24.270 Repealed—Ordinance No. 3844-11/09 5.24.275 Repealed—Ordinance No. 3844-11/09 5.24.280 Repealed—Ordinance No. 2726-10/84 5.24.285 Repealed—Ordinance No. 3844-10/84 5.24.290 Repealed—Ordinance No. 2726-10/84 5.24.300 Repealed—Ordinance No. 2726-10/84 Huntington Beach Municipal Code Chapter 5.24 Page 1 of 18 5/19/10 5.24.310 Repealed—Ordinance No. 2726-10/84 5.24.320 Repealed—Ordinance No. 2726-10/84 5.24.330 Repealed—Ordinance No. 2726-10/84 c 2 4 inn T rnlay -til epefation de lafea nuisanee 5.24.341 Severability 5.24.010 Definitions. Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this chapter. al "Applicant'means an applicant for an Establishment Registration Certificate. (b) "California Massage Therapy Council" or"CAMTC" means the State nonprofit organization created to regulate and issue massage practitioner and therapist certificates_ pursuant to California Business and Professions Code Section 4600, et sea. (c) "Certified" shall mean any valid certificate issued in accordance with Sections 2600 through 4620 of the California Business and Professions Code. (d) "Certified Massage Business"means any business that possesses a valid city business license and an Establishment Registration Certificate, and where the only persons employed or used by that business to provide massage services have current and valid State Certifications. (e) "Certified Massage Practitioner"means any person holding a current and valid State Certificate issued by the California Massage Therapy Council pursuant to Califoml7 Business and Professions Code Section 4600 et sea., whether as a massage_practitioner or massage therapist, as defined therein. (f) "Certified Sole Proprietorship" means any massage business where the owner is the only person employed or used by that business to provide massage services and the owner has a current and valid State Certification and an Establishment Registration Certificate. (g) "City"means the City of Huntington Beach. (h) "Chief of Police or Designee" shall mean the person or persons designated to administer the provisions of this Chapter. (i) "Compensation" shall mean the payment, loan, advance, donation, contribution, deposit, or gift of money or anything of value. (i) "Employee"means any person, other than a massage practitioner, manager or owner or operator, who renders any service, with or without compensation, to the owner or operator of a massage establishment relating to the day-to-day operation_ of the massage establishment whether as an employee or independent contractor. (k) "Establishment Registration Certificate—Business" or"Business Registration Certificate" means a certification issued by the Chief of Police upon submission of satisfactory evidence_ as required that a massage business or sole proprietorship employs or uses only certified massage therapists or practitioners possessing valid and current State Certifications and has satisfied all other requirements pursuant to the provisions of this Chapter. (1) For purposes of this Chapter, the terms "massage" and"bodywork" shall have the same meaning. (aM) "Massage"-efL-3"massage therapy", or"bodywork" means any method of pressure on, or friction against or stroking,kneading, rubbing,tapping, pounding, vibrating, or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus or appliance, or with or without supplementary aids such as rubbing Huntington Beach Municipal Code Chapter 5.24 Page 2 of 18 5/19110 alcohol, liniment, antiseptic, oil, powder, cream, ointment, or other similar preparations commonly used in this practice. (hn) "Massage establishment" means any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, or combination of individuals, engages in, conducts, carries on or permits to be engaged in, conducted or carried on, massages, baths, or health treatments involving massage or baths. (3467-6/00,3844-11/09) (eo) "Massage therapist," "bodyworker," "bodywork therapist," or"massage and bodywork therapist"means a person who is certified by the California Massage Therapy Ofgafliz Council under Subdivision(c) of Section 4601 of the California Business and Professions Code, and who administers massage for compensation (2395-11/79,2466-2/81, 3267-5/95,3844-11/09) (dp) "Massage practitioner," "bodywork practitioner,"or"massage and bodywork practitioner"means a person who is certified by the California Massage Therapy OrganizatienCouncil under Subdivision(b) of Section 4601 of the California Business and Professionals Code, and who administers massage for compensation. (3267-5/95,3844-11/09) (q) "Operator"means the individual who manages the massage establishment. Evidence of management includes but is not limited to evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules or purchase supplies. An operator may also be an owner. (e�r)"Organization"means the California Massage Therapy Council created pursuant to Sections 4600-4620 of the California Business and Professions Code. (3267-9/95,3844-11/09) ( f this Chapter-,the t "massage" aH " dyvefk" sh tt have the s e g (g_) "Owner"means the individual(s) whose name appears on the City of Huntington Beach business license. (3267-9/95) (t) "Registered Certificate Holder"means a business that has been issued an Establishment Registration Certificate by the City's Chief of Police. (u) "State Certification" or"State Certificate" means a valid and current certification properly issued by the CAMTC pursuant to California Business and Professions Code Section 4600, et sm- (h) "Operator-"means the individual who manages the massage establislunent. Evidefte (i) "Gei4ified" shall mean any valid eeftifieale issued in aeeefdanee with Seefiens 2600 4ffetfO. 4620-ef the C—alifeffiia Bs and Prefessiens Cede. — 0) "Compensation" shall mean the paymefft, lean, advanee, donation, eefAfibtAien, deposit, of 5.24.015 Authority. The Chief of Policed or Designee shall have the power and authority to promulgate rules, regulations, and requirements consistent with the provisions of this Chapter and other law in connection with the issuance of an Establishment Registration Certificate. The Chief of Police or Designee shall have authority to make decisions, investigate and take action under this Chapter. Huntington Beach Municipal Code Chapter 5.24 Page 3 of 18 5/19/10 5.24.020 Massage eCertification/Establishment Registration Certificate Y-Reguired. It shall be unlawful for any person, association, partnership, corporation or other entity to engage in, conduct or carry on,permit to engage in, in or upon any premises within the City of Huntington Beach the business of providing massages in exchange for compensation without being currently certified as a massage practitioner or massage therapist by the California Massage Therapy Or-ganizatienCouncil in accordance with Sections 4600 through 4620 of the California Business and Professions Code and be a Certified Massage Business as described in 5.24.01 OfA herein. pie-atien by the Massage Thefapy Organization must be obtained by N4afeh 1, 2010. (2395-11/79,3267-9/95,3844-11/09) 5.24.025 Application for Establishment Registration Certificate, a An application for an Establishment Registration Certificate shall be filed on forms provided by the City, submitted under penalty of perjury, and shall include the following information: (1) The full true name under which the business will be conducted. (2) The full true name of theapplicant. (3) A complete statement listing and explaining any and all aliases and fictitious names used by the applicant within the last ten (10)years. (4) The present or proposed business address where the business is to be conducted. (5) A complete description of all services to be provided at the proposed massage establishment. (6) Business Entity Type. (7) Tan ID number used for the income tan reporting for the business applying for. (8) The residence address of the applicant. (9) Date of Birth. (10) Social Security Number. (11) A valid and current driver's license and/or identification card issued by a state or federal government agency or other photographic identification bearing a bona fide seal by a foreign government. (12) The original valid and current State Certificate issued by CAMTC. If establishment owner is not State certified, a valid State Certificate must be provided for an employee or independent contractor. (13) The original valid and current ID Card issued by CAMTC. If establishment owner is not State certified a valid ID Card must be provided for an employee or independent contractor. (14) The name and address of any massage business or other like business owned or operated by any person whose name is required to be given pursuant to this section for the ten(1 Ol years immediately preceding the filing of the application. (15) A description of any other business to be operated on the same premises, or on adjoining premises, owned or controlled by the applicant. (16) The name and address of the owner and lessor of the real property, if any, upon or within which the business is to be conducted including the mailing address lessee submits lease or rental payments to. (17) A copy of the current lease agreement with lessor of the real property which will include property owner personal name, business name, if applicable, complete valid mailing address, and phone number. (18) A signed statement authorizing the City, its officers, agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and to ensure continual compliance with all applicable provisions of law. (19) A signed statement that the business owner shall employ only State Certified Massage Practitioners or Therapists to provide massage services. Huntington Beach Municipal Code Chapter 5.24 Page 4 of 18 5/19/10 (20) A signed statement that all persons on establishment premises will be State Certified Massage Practitioners or Therapists whether a business employee or independent contractor. (21) A signed statement that all independent massage practitioners on the establishment premises will be in possession of a valid current city business license. (22) Completed Fingerprinting and background check for any business owner or operator applying for an Establishment Registration Certificate who is not otherwise certified by CAMTC. (23) Payment of an Establishment Registration Certificate fee set by council resolution. (b) An Applicant who is a business owner, operator or sole proprietor and who is not CAMTC certified, must submit current background and fingerprint information to determine whether the Applicant has any of the following: (1) All convictions for any crime involving conduct which requires registration under California Penal Code Section 290 (Sex Offender Registration Actj (2) Convictions for violations of California Penal Code Section 266i (pandering). 315 (keeping or residing in house of ill-fame). 316 (keeping disorderly house). 318_(prevailing upon person to visit place for gambling or prostitution). 647(b) (prostitution): 653.23 (supervision of a prostitute): 415 (disturbing the peace). (3) Convictions of any felony offense involving the sale of a controlled substance specified in Section 11054, 11055, 11056. 11057. or 11058 of the Health and Safety Code. (4) Convictions of crimes designated in Government Code Section 51032 or any crime involving dishonesty. fraud, deceit, violence or moral t=itude. (5) All injunctions for nuisances under Penal Code Section 11225-11235. (6) Convictions in any other state of any offense which if committed or attempted in this state would have been punishable as one or more of the referenced offenses of this subpart. (7) Conspiracy or attempt to commit any such offense described in subsections (1)-(6) of this sum. (c) The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer/employee Such person shall complete and sign all application forms required of an individual applicant under this Chapter. The corporation's or partnership's responsible managing officer must at all times meet all of the requirements set by this Chapter or the corporation's or partnership's Establishment Registration Certificate shall be suspended until a responsible managing officer who meets such requirements is designated. If no such person is designated within ninety(901 days the corporation's or partnership's Establishment Registration Certificate is deemed canceled and a new application for registration must be filed. (d) A signed statement that the owner/applicant shall be responsible for the conduct of all employees or independent contractors working on the premises of the business and acknowledging that failure to comply with California Business& Professions Code section 4600 et sea with any local state or federal law, or with the provisions of this Chapter may result in the revocation of the Establishment Registration Certificate. (e) Zoning consistency check in writing from the City's Planning and Building Department. A zoning consistency check does not confer or authorize any entitlement to a use permit or building permit or similar, which process if applicable is separate from the Establishment Registration Certificate process. Huntington Beach Municipal Code Chapter 5.24 Page 5 of 18 5119110 (f) Payment of a nonrefundable registration fee in an amount established by resolution of the Citv Council. (g) Upon receipt of the completed application, the Chief of Police or Designee shall refer the application to other City departments that may inspect the premises proposed to be used as a massage business and shall make a written recommendation to the Chief of Police or Designee concerning compliance with the respective requirements. (h) The Chief of Police or Designee shall have up to sixty (601 Calendar days after the submission of all required information to complete an investigation. 5.24.030 Massage establishment or services—Business License Required. (a) Any person, association, corporation,partnership or other entity desiring to operate a massage establishment or provide massage services shall apply€erobtain a business license and provide the following relevant information: (3267-9/95,3738-7/06,3844-11/09) (1) Full name of certificate holder(if applicablel. (3844-11/09) (2) Date of Birth. (3844-11/09) (3) State issued identification number(if applicable)_ (3844-11/09) (4) Social Security Number_ (3844-11/09) (5) Home address and phone number. (3844-11/09) (6) Work address and phone number_ (3844-11/09) (7) Color photograph of the certificate holder. (3844-11/09) (8) Proof of State certification for those who will provide massage services.(3844-11/09) (b) Prior to submitting the massage business license application, the fees as established by resolution of the City Council shall be paid to the City of Huntington Beach. (2395-11/79, 3267-9/95,3844-11/09) (c) The application for the massage business license does not authorize operation of a massage establishment or performing massage services until the business license is issued. (3844-11/09) (d) It shall be the responsibility of each massage business owner or operator to file copies or provide other evidence of the certificates held by the persons who are providing massage services at the business. (3844-11/09) (e) It shall be the responsibility of each massage business owner or operator to notify the City of any intention to rename, change management, or convey the business to another person. (3844-11/09) 5,24,035 Approval or denial of Establishment Registration Certificate. (a) An Establishment Registration Certificate shall be issued by the Chief of Police or Designee to any Certified Sole Proprietorship that demonstrates all of the following: 1. The operation as proposed by the applicant if permitted would comply with all applicable laws including but not limited to. the City's building, zoning, business license. and health regulations and all requirements listed in this Chapter: 2. The owner is the only person employed or used by that business to provide massage services; 3. The owner holds a valid and current State Certificate issued pursuant to Chapter 10.5 of the California Business& Professions Code and that the owner/applicant is the same person to whom the CAMTC issued a valid and current State Certificate and identification card; Huntington Beach Municipal Code Chapter 5.24 Page 6 of 18 5/19/10 4. The applicant possesses a valid business license issued pursuant to the Huntington Beach Municipal Code; and 5. The applicant has not failed to provide information, assurances, or documentation required by this Chapter, has not failed to reveal any fact material to qualification, or has not supplied information that is untrue or misleading as to a material fact pertaining to the qualification criteria. (b) An Establishment Registration Certificate shall be issued by the Chief of Police or Designee to any Certified Massage Business that demonstrates all of the following: 1. The operation, as proposed by the applicant, if permitted would comply with all applicable laws. including, but not limited to, the City's building, zoning, business license, and health regulations and all requirements listed in this Chapter; 2. The massage business employs or uses only Massage Practitioners with CAMTC State Certificates whose certifications are valid and current and that owners of the State Certificates are the same persons to whom CAMTC issued valid and current identification cards; and 3. The applicant has provided all information, assurances, or documentation requiredyhis chapter,has not failed to reveal any fact material to qualification, and has not supplied information that is untrue or misleading as to a material fact pertaining to the qualification criteria. (c) The background check for any applicant/owner authorized by this Chapter shows that such person has not been required to register under the provisions of Section 290 of the California Penal Code; there exists no probable cause to believe a violation of the crimes indicated in section 5.24.025(bl herein or California Penal Code Section 415• has not had an individual or business permit or license with any agency, board, city, county, territory, or state, denied, revoked, restricted, or suspended within the last five (5)years; and has not been subject to an injunction for nuisance under Penal Code Section 11225-11235 within the last five (5)years. (d) The Chief of Police or Designee may deny issuance of an Establishment Registration Certificate for non-compliance with any of the above described requirements. 5.24.040 Exemptions. Exemptions do not apply to independent contractors of the listed exempted professionals. The provisions of this Chapter shall not apply to the following classes of individuals or groups while engaged in or performing the duties of their respective professions: (a) Physicians, surgeons, chiropractors, osteopaths, acupuncturists, and physical therapists duly licensed to practice in the State of California. (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. (c) Registered or licensed vocational nurses duly registered by the State of California. Huntington Beach Municipal Code Chapter 5.24 Page 7 of 18 5/19/10 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. fl Trainers of any amateur, semi-professional or professional athlete or athletic team. 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. (i) Owners of stand alone hotels with more than 100 on-site rooms for rent and which provide massage services for their guests on site by a state certified massage practitioner or therapist. 5.24.045 Health & Safety Requirements. All premises of a Certified Massage Business shall be subject to periodic inspection by the City for compliance with health, safety, and building standards and all such establishments shall comp y with the foll I 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(401 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. (c)Equipment- adequate equipment acceptable to the Orange County Health Department 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. (e)Linen storage - closed cabinets shall be provided and utilized for storage of clean linens,and approved receptacles acceptable to the Orange County Health Department shall be provided for the deposit of soiled linen. (fl 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 the Orange County Health Department. 5.24.050 Massage establishment operation. Every massage establishment shall comply with the following operating requirements: Huntington Beach Municipal Code Chapter 5.24 Page 8 of 18 5/19/10 (a) (1) Each person employed or acting as a massage therapist or massage practitioner shall have a valid certificate issued by the California Massage Therapy Council,the original of which shall be conspicuously posted in public view and be visible from the entrance and/or reception and waiting area The Certificate Holder shall have his or her identification card in his or her possession while providing massage services. (2) It is unlawful for the owner, operator, responsible managing employee, manager or certificate holder in charge of or in control of the massage establishment to employ or permit a person to act as a massage therapist or massage practitioner who does not possess a valid massage therapist or massage practitioner certificate issued by the California Massage Therapy Council. (3) No business, except those exempted under section 5.24.040 herein, may employ anyone to provide massage or allow anyone to massage unless the massage provider possesses a valid massage certificate issued by the California_Massage Therapy Council. (b)No massage establishment shall operate nor shall any massage be administered in any massage establishment between the hours of 11:00 p.m. and 8:00 a.m. The hours of operation must be displayed in a conspicuous place in the lobby within the massage establishment and in any front window clearly visible from outside the establishment. (c) Any massage establishment or business shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services are certified by the California Massage Therapy Council. (d) Massage therapists and massage practitioners 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. (e)Areas where massages are to be performed shall be separated by a non-lockable door unless there is no staff available to assure security for clients and massage staff who are behind closed doors. 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. (f)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 (11 patron. (a) 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 Orange County 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. (h) Instruments utilized in performing massage shall not be used on more than one (1)patron unless they have been sterilized using approved sterilizing methods. (i) Where a covering is furnished by the massage establishment, it shall not be used by more than one (11 patron until it has first been laundered and disinfected. (2395-11/79. 3267-9/95) Huntington Beach Municipal Code Chapter 5.24 Page 9 of 18 5/19/10 (i) The owner or operator of the massage establishment shall keen a complete and current list of the names and residence addresses of all massage therapists, massage practitioners 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 Chanter. (k)No part of the establishment shall be used for residential or sleeping purposes. (1) Every massage establishment shall be open during hours when massage is being provided for inspection by any officer of the City of Huntington Beach. (m)All doors leading into a massage establishment or area where massages are being performed shall remain unlocked during business hours unless there is no staff available to assure security for clients and massage staff who are behind closed doors. (n) The Owner shall have a continuing obligation to notify the Chief of Police in writing of any changes in massage practitioners and owners, operators or staff within seven(7) calendar days of such change. (o) Every massage business owner or operator shall report in writing immediately to the Chief of Police any and all changes of address or ownership of the massage business. 5 24 055 Outcall Massages No outcall massage which is a massage in a private residence or at a location which does not regularly provide or permit massage shall be conducted in a hotel or motel room or in the private residence of the Certified Massage Practitioner. No outcall massage may be provided in a private residence or business not regularly providing massage services between 11 p.m. and 8 a.m. Notwithstanding the foregoing. a Certified Massage Practitioner is permitted to provide outcall massage services at a private residence so long as it is not the private residence of the Certified Massage Practitioner and is not provided between 11:00 p.m. and 8:00 a.m. 5 24 060 Massage Establishment-Prohibited Conduct: (a) No alcoholic beverages shall be sold, served, or furnished on the premises of any massage establishment without a valid alcoholic beverage license from the State and conditional use permit from the City, (b) During the hours of operation visitors shall not be permitted in massage therapy rooms except as follows: (1)the parents or guardian of a patron who is a minor child may-be present in the massage therapy room with that minor child; (2)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(31 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. (c) No operator shall hire employ or allow a person to perform massage services unless such person possesses a valid CAMTC Certificate Each Operator of a massage establishment shall verify that all persons hold the appropriate State Certificate required by this Chapter. Huntington Beach Municipal Code Chapter 5.24 Page 10 of 18 5/19/10 (d) No electrical, mechanical or artificial device shall be used by any massage establishment staff for audio and/or video recording or for monitoring the performance of a massage, of the conversation of other sounds in the massage rooms, without the knowledge and written consent of the patron. (e) A massage therapist or massage practitioner shall not violate the provisions of Sections 647(a) and (b) of the California Penal Code, or any other state law involving a crime of moral turpitude, and such practices shall not be allowed or permitted by anyone. (f) A massage therapist or massage practitioner shall be fully clothed at all times and shall not expose their genitals, pubic area, buttocks, or in the case of female therapists or practitioners, their breasts, and such practices shall not be allowed or permitted by anyone. (g) A massage therapist or massage practitioner shall not massage, fondle, or otherwise have intentional contact with the genitals or anus of any patron, or the breasts of a female patron and such practices shall not be allowed or permitted by anyone. (h) A massage therapist or massage practitioner shall not give a massage unless the breasts of female patrons are covered and the genitals of all patrons are covered and such practices shall not be allowed or permitted by anyone. 5 24 065 Responsibility The owner or operator of a massage business or establishment shall be responsible for the conduct of all employees or independent contractors working on the premises of the business. 5.24,070 Inspection by City officials and notices of violation (a) The investigating officials of the City, as designated by the Chief of Police, include, but are not limited to representatives of the City's Police Department Finance Department Fire Department Planning and Building Department and the County Health Officer, shall have the right to enter the premises from time to time during regular business hours prior to the issuance of an Establishment Registration Certificate and subsequently for the purpose of making reasonable inspections to enforce compliance with this Chapter and with building, fire, electrical,plumbing, and/or health and safety regulations In the event an Establishment Registration Certificate has been issued, it may be revoked or suspended in the manner hereinafter set forth in this Chapter. (b) No person shall refuse to permit or interfere with, a lawful inspection or compliance check of the premises by City or County officials. (c) Whenever any City official inspects a massage business and finds that any provision of this Chapter has been violated he or she shall give notice of such violation by means of an inspection report or other written notice including but not limited to issuing a citation for each and every violation of this Chapter or other applicable laws In any such notification, the investigating person shall: (1) Set forth the specific violation or violations found, and shall notify the Registered Certificate Holder that failure to comply with any notice issued in accordance with the provisions of this Chapter may result in the revocation or suspension of the Establishment Registration Certificate. Huntington Beach Municipal Code Chapter 5.24 Page 11 of 18 5/19110 (2) The Registered Certificate Holder may be issued a warning that any future violation of this Chanter may result in suspension or revocation of the Establishment Registration Certificate or the City officials may establish a specific and reasonable period of time for the correction of the violation or violations No time to correct need be given for health and safety violations or violation of criminal law. (3) The Registered Certificate Holder and operator shall take immediate action to correct violations and the City officials may re-inspect the business for compliance. 5 24 075 Transfer of Establishment Registration Certificate An Establishment Registration Certificate shall not be transferrable between persons or business owners. The change of business address shall be allowed on an Establishment Registration Certificate, providing that the same persons are listed as the business owner, the new business location complies with all provisions of this Chapter, and the location transfer fee is paid upon request of transfer from one business location to another business location. .24,080 Establishment Registration Certificate Expiration and Renewal. An Establishment Registration Certification shall be valid for one year, coinciding with the city business license effective and expiration dates. 5 24 085 Revocation or Suspension of Establishment Registration Certificate—Massage Business. (a) An Establishment Registration Certificate may be suspended or revoked upon any of the following grounds: (1) There is probable cause to believe an owner, operator, corporation, or partner who owns five (5)percent or more of the massage business has committed a violation that could have caused denial of the Establishment Registration Certificate. (2) There is probable cause to believe a Registered Certificate Holder has made a material misrepresentation on the application for an Establishment Registration Certificate or renewal. (3) There is probable cause to believe the Registered Certificate Holder has engaged in conduct or operated the massage business or as a Massage Practitioner in a manner which violates any of the provisions of this Chapter, any conditions of the Establishment Registration Certificate, or any of the laws which would have been grounds for denial of the Establishment Registration Certificate. (4) The owner or operator of a Certified Massage Business employs or uses non-certified massage technicians to perform massage services. (5) Violations of this Chapter or of California Business &Professions Code section 4600, et sea. have occurred on the business premises. (6) The Registered Certificate Holder has failed to comply with one or more of the health and safety requirements under this Chapter. Huntington Beach Municipal Code Chapter 5.24 Page 12 of 18 5/19/10 (7) The Registered Certificate Holder has engaged in fraud, misrepresentation, or false statements in obtaining or maintaining an Establishment Registration Certificate. (b) No massage establishment shall be established at a location where a massage establishment was closed due to conduct which violated any of the provisions of this Chapter for 1 year. 5.24,090 Revocation or Suspension Hearing. (al Notice of revocation or suspension shall contain a statement of the violation(s)which constitute the basis for suspension or revocation and information about the right to appeal and the necessity of an appeal as a prerequisite to litigation. The Registered Certificate Holder shall have ten(10) calendar days to appeal to the Chief of Police or Designee. (b) A hearing shall be scheduled with the Chief of Police or Designee upon not less than ten(101 calendar days notice to the Registered Certificate Holder. (c) Notice shall be given by personal service or certified or registered mail to the address shown on the last application or renewal. If reasonable attempts to otherwise serve are not successful service may be provided by first class mail. (d) Service shall be deemed complete when personal service is made, when the certified letter is delivered, or when the decision is mailed by first class mail. (e) Unless otherwise specifically prohibited by law, the burden of proof is on the Registered Certificate Holder/applicant in any hearing_ or other matter under this Chapter. Formal rules of evidence shall not apply to the hearing. (fl If the Establishment Registration Certificate is suspended or revoked. the Establishment Registration Certificate shall be surrendered. 5 24 095 Appeals from Revocation pension or Denial of Establishment Registration Certificate. (a) Appeals from any decision of the Chief of Police under this Chapter shall be in writing, shall clearly state all applicable basis for the appeal and shall be filed with the City Clerk not later than fifteen (15) calendar days following the date of notice of the decision. (b) The City Clerk shall not accept an appeal and no hearing shall be held, unless the appellant has paid a filing fee in an amount set by resolution of the City Council, to defray the cost of such appeal. Any appeal without the timely payment of fees shall be considered to be untimely. (c) The scope of the appeal hearing pursuant to this section shall be limited to those issues raised by the appellant in the written appeal as submitted pursuant to subsection(al of this section. (d) Upon receipt of a timely filed appeal the City Clerk shall set the matter for hearing before the City Manager or Designee The hearing shall be held not fewer than ten(10) calendar days and not more than thirty (30) calendar days from the date of the appeal request The hearing may be continued from time to time upon the mutual consent of the parties. Huntington Beach Municipal Code Chapter 5.24 Page 13 of 18 5/19/10 (e) The appellant shall be provided with notice of the time and glace of the anneal hearing, as well as a copy of all relevant materials at least ten(10) calendar days prior to the hearing. 5.24.100 Reapplication After Denial. No reapplication for an Establishment Registration Certificate will be accepted within one year after an application or renewal is denied or an Establishment Registration Certificate is revoked, provided that, if an Establishment Registration Certificate is denied for the sole reason that a massage practitioner does not possess a CAMTC certification, reapplication may occur after CAMTC certification has been attained. 5.24.105 Violation—Penalty. Any person violating this Chapter shall be guilty of a MISDEMEANOR, punishable by a fine of one-thousand dollars ($1,000) or by imprisonment in the county fail for a period not to exceed six (61 months. or by both such fine and imprisonment. 5.24.110 Separate Violations. Each violation described in sections 5.24.045, 5.24.050. 5.24.055 and 5 24 060 shall constitute a separate violation and each violation may be charged as a separate count in the event of administrative or criminal enforcement action. 5 24 115 Unlawful Operation Declared Nuisance. 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 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 abatement removal or enioinment thereof, in the manner provided by law. The City Attorney shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as shall abate or remove such massage establishment and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary to the provisions of this Chapter. exempted pr-efessienals. The pr-evisiens ef this ehapter shall not apply to the feflev�4fig elasses 6 individuals or-groups while eagaged in or-per-fenning the "ies of their-r-espeefive pr-efessiens.: > stffgeens, > esteepaths, aeuptinettffists, Hospitals, and physieal therapists dtil�, or-ether-heaM ear-e f4eilifies duly heensed by the state nufsing > sanitariums, > stffgeens, > esteepaths g v '13467 6100) {3694 2/$5} ., massage abeve the nee aad shetilde1s, hands and arms end l��varthe knee—. k3 94-2iw within the 0 ef their- 11T. (f) Rainers of any am7 /7ZOT�� i empleyed or r No 0 11 11e lull mayadminister massage ether-wise tfeat or-ear-e fer-patients other-than pafiet4s of the pr-aefifiener-eed these-patipntjq must have been pr-eser-ibed massage thefapy by a pfaetifienef listed in this seefien prior-te the administfation of the massage therapy.-(3694-2105} Huntington Beach Municipal Code Chapter 5.24 Page 14 of 18 5119110 (h) Pl+ysieal Therapist studetAs, and Massage Therapist studefAs eaffling pr-aefieal hours fe professional, as defined in this seefien, ffiust be pfesefA at all fiffies when a student is (i) Owner-s ef stafid a4ene hotels with ffier-e than 100 an site feems fef r-ent and w-hieh pfevide massage ser-viees for-�heir-guests on site by a state eei4ified massage pr-aefitiener-or-thefapist. shall be posted at the main eatfanee idetAifying the business as a massage establislh�nent- (b) Lighfift minimum ligl4ing shall be pr-evided in aeear-danee with the Eleetfieal Cede adopted by the Cky and, in addition, at least ene aftifieial light ef net less than" (4 0) 9/95,369 E3694-21W (d) M6�jff het end eold Funning water- shall be pr-evided at all fifnes-.�� appr-eved r-eeeptaeles shall be pr-evided for-the deposit ef. seiled linen. (2396 99, 3267-9/95, 3694-2/05} (f) Separation af sexes if ffiale and female patrons afe to be sefved simultaneetisly at massage establishffient, a sepafate massage r-eem or-r-eems and separate dressing,bathing an tailet f4eilities shall be pr-evided and utilized for-ffiale and female pa4efis. Eaeh sepafate (g) Massage table pads pads used e — , bles shall be e`v'vavu in u YM 7 washable plastie or-ether-watefpr-eef material weeptable te Orange Geijnt�, 5.24.170 Massaee establishment operation. Evefy massage establisIffnent shall eomply wi (a) (1) Eaeh per-sen employed er-aeting as a fnassage therapist er-massage pme4itienef shall h a valid eeftifieae issued by the Massage Therapy Or-ganizalien, a elear-ly legible eepy ef w-hieh shall be eenspietteusly posted in the r-eem or-leeation where mass "44 1\ it is 1.,,,f;,l for-the a rate, 1.1 o ..leye0 manager- eef+'f" + holder- 1, f „+« l f the fnassage + b ' 1, ++ o „1,,,, o pefsenmassage thefapistmassage pr-aefifiener-whe does no possess a vafid massage thef-apist or-massage pr-aetifiener-eeftifiea4e issued by the Massage The Or-ganizatie+.-- 34&749*, 3844-a-a� Huntington Beach Municipal Code Chapter 5.24 Page 15 of 18 5/19/10 � I � 11 •l • •• min------ • MI . • r• • • • IN WON PIL91W PRI W.- Eva • • • L NO -A Rim • r A WIN I w. _ • • • (n) Ne paft ef the establislffnei4 shall be used fef residential er-sleeping �2�o 3844 4110% >be, > eensuming, The fespensible > epefat > employee, manager-of pefmit4ee shall not pefmit (p) Every massage establislunent shall be open at all times der-ing houfs dttfiiig whieh massage is (q) All deefs leading ifAe a massage establislifnent E)r-afea where massages are being per-fefmed shall femain unleeked dufing business hows unless thefe is ne staff available te assuf-e seetffity for-efients and massage staff whe are behind elesed deefs. -(2395IV79,32679196, 3844 I I/W aeflTties witha a senQe -emassage-{2395-,U7- , 24so-218-r-P267 W95, 3944 444W provided in a pfivate r-esidenee or-business net r-egiilar-ly providing massage sefviees between 7 p.m. end (a) A massage therapist er-massage pr-aefifienef shall net vielate the pfevisiefis of See 64 7/ \ ,d /1.\ of the Calif.,..;., Penal Code, or-any .•ethe state law; ao elying f,moral va ua (b) A massage therapist er-massage pr-aefifiener-shall be fully elothed at all times and shall net. tufpitude, and saeh pr-aefiees shall net be allowed er-pefmiaed by anyone. (2395 4 lag, (e) A massage thefapist er-massage pr-aefitionef shall not massage a patfefi ef ene sex within the 1. This subseefien shall not appiy if all inwived patfefts are Pally elethed, exeluding seeks e 6 —(��44a VG% massaged in the same 4eatmetA feem. (3844 4 1/89) Huntington Beach Municipal Code Chapter 5.24 Page 17 of 18 5/19/10 minor's3. NE) per-son tmder-the age of 18 may eensent to a massage in the pfesenee of another-thqles-s the other-per-sen is the . (3844--�4 (d) A ffiassage therapist er-ffiassage pr-aefifiener-shall net massage, fondle, or-ether-wise have and sueh pr-aefiees shall net be allowed of permitted by anyone. /2395 11/79 3267 9/96 (e) A massage thefapist or-massage pr-aelitionef shall not give a massage unless the bfeasts e 5.24.235 Resvonsibilio . The ev,%ey-or- eper-atef of a massage business or-establishment shall be responsible the P-Ap� of crnuszzMISDEMEA cs Affiy per-sen violating this ehaptef shall be guilty of 5.24.240 Violation No! ! > punishable by a fine of ene > the , .,ty jail F«. pefiednet too ee s m (6) ,n. „ths of by b tl, .tie stieh fine and; „+ eendueted or-maintained eei4far-y to the pr-evisiew, 'I I i J �ter- shall be end the same is hereby > addifien > or-in liett > > > feme3vai > in the manner-pfevided by law. The City Mtefney shall take sueh ethef steps and shall apply to stieh eetfft of eoufts as fRay jtifisdiefion to gant stteh relief as shall abate er-r-emove sideh fnassage establishment and r-estr-ai 5 24 341 Severabifily. If any section subsection phrase or clause of this section is for any reason held to be invalid such decision shall not affect the validity of the remaining portion of this section. The City Council declares that it would have adopted this ordinance and each section subsection phrase or clause thereof irrespective of the fact that any one or more sections subsections, sentences,phrases or clauses be declared invalid. Huntington Beach Municipal Code Chapter 5.24 Page 18 of 18 5/19/10 ORDINANCE NO. 3973 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTER 5.24 OF THE HUNTINGTON BEACH MUN IPAL CODE RELATING TO MASSAGE ESTABLISHMENTS The City Council of the City of Huntington Beach does hereby ordain as follows: 1 SECTION 1. Section 5.24.010 of the Huntington Beach Muni pal Code is hereby amended to read as follows: 5.24.010 Definitions. Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this Chapter. (a) "Applicant"means an applicant for an Establishment Registration Certificate. (b) "California Massage Therapy Council" or"CAMTC"means the State nonprofit organization created to regulate and issue massage practitioner and therapist certificates pursuant to California Business and Professions Code Section 4600, et seq. (c) "Certified" shall mean any valid certificate issu/din accordance with Sections 2600 through 4620 of the California Business and Professions Code. (d) "Certified Massage Business"means any business that possesses a valid city business license and an Establishment Registration Certificate, and where the only persons employed or used by that business to provide massage services have current and valid State Certifications. (e) "Certified Massage Practitioner"me ns any person holding a current and valid State Certificate issued by the Californiai assage Therapy Council pursuant to California Business and Professions Code Section 4600 et seq., whether as a massage practitioner or massage therapistlas defined therein. (f) "Certified Sole Proprietorship"means any massage business where the owner is the only person employed or used by that business to provide massage services and the owner has a current and aid State Certification and an Establishment Registration Certificate. (g) "City" means the City of Huntington Beach. (h) "Chief of Police or Designee" shall mean the person or persons designated to administer the pro visions of this Chapter. (i) "Compensation" shall mean the payment, loan, advance, donation, contribution, deposit, or gift of money or anything of value. Ij 13-3638/91838 1 " Ordinance No. 3973 (j) "Employee"means any person, other than a massage practitioner, manager or own r or operator, who renders any service, with or without compensation, to the owner or operator of a massage establishment relating to the day-to-day operation of the massage establishment whether as an employee or independent contractor. (k) "Establishment Registration Certificate—Business" or"Business Registration Certificate" means a certification issued by the Chief of Police upon submission of satisfactory evidence as required that a massage business or sole proprietorship employs or uses only certified massage therapists or practitioners possessing valid and current State Certifications and has satisfied all other requirements'pursuant to the provisions of this Chapter. J (1) For purposes of this Chapter, the terms "massage" and "bodywork's'/shall have the same meaning. m Massage , massage therapy", or bodywork means any method of pressure on, or friction against or stroking,kneading, rubbing, tapping, pou)Jing, vibrating, or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus or appliance, or with oywithout supplementary aids such as rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment, or other similar preparations commonly used in this practice. (n) Massage establishment means any establishment having a fixed place of business where any individual, firm, association, partnership corporation, or combination of individuals, engages in, conducts, carries on or permits to be engaged in, conducted or carried on, massages, baths, or health treatments involving massage or baths. (o) "Massage therapist," "bodyworker," "bodywo°rk therapist,"or"massage and r _- bodywork therapist" means a person who is certified by the California Massage Therapy Council under Subdivision(c)of ection 4601 of the California Business + and Professions Code, and who administers massage for compensation. (p) "Massage practitioner," "bodywork practitioner," or"massage and bodywork practitioner"means a person who is certified by the California Massage Therapy Council under Subdivision(b) of Section 4601 of the California Business and Professionals Code, and who administers massage for compensation. (q) "Operator" means the individual ho manages the massage establishment. Evidence of management includes but is/not limited to evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules or purchase supplies. An operator may also be an owner. (r) "Organization"means the California Massage Therapy Council created pursuant to Sections 4600-4620 off the California Business and Professions Code. (s) "Owner" means the i dividual(s)whose name appears on the City of Huntington Beach business license. (t) "Registered Certificate Holder"means a business that has been issued an Establishment Registration Certificate by the City's Chief of Police. (u) "State Certification"or"State Certificate" means a valid and current certification properly issued by the CAMTC pursuant to California Business and Professions Code Section 4600,�et seq. 13-3638/91838 2 Ordinance No. 3973 SECTION 2. Section 5.24.015 of the Huntington Beach Municipal Code is her 'by added to read as follows: 5.24.015 Authority. The Chief of Police or Designee shall have the power and authority to promulgate rules, regulations, and requirements consistent with the provisions of this Chapter and other law in connection with the issuance of an Establishment Registration Certificate. The Chief of Police or Designee shall have authority to make decisions, investigate and take action under this Chapter. SECTION 3. Section 5.24.020 of the Huntington Beach Municipal Code is hereby amended to read as follows: a .24.020 5 Massage Certification/Establishment Registration Certificate Required. It shall be unlawful for any person, association,partnership, corporation or other entity to engage in, conduct or carry on,permit to engage in, in or upon any premises withiTthe City of Huntington Beach the business of providing massages in exchange for compensation without being currently certified as a massage practitioner or massage therapist by the California Massage Therapy Council in accordance with Sections 4600 through 4620 of the California Business and Professions Code and be a Certified Massage Business as described in 5.24.010(d)herein/ SECTION 4. Section 5.24.025 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.025 Application for Establishm stration Certificate. (a)An application for an Establishment Registration Certificate shall be filed on forms provided by the City, submitted under penalty of perjury, and shall include the following information: (1) The full, true name under which the business will be conducted. (2) The full true nam�of the applicant. (3) A complete statement listing and explaining any and all aliases and fictitious names used by the applicant within the last ten (10) years. (4) The present or proposed business address where the business is to be conducted. (5) A complete ydescription of all services to be provided at the proposed massage establishment. r (6) Business"Entity Type. (7) Tax ID/humber used for the income tax reporting for the business applying for. (8) The residence address of the applicant. (9) Date�of Birth. (10) Social Security Number. (11) ANalid and current driver's license and/or identification card issued by a state or federal government agency or other photographic identification bearing a bona fide seal by a foreign government. (12) ' The original valid and current State Certificate issued by CAMTC. If establishment owner is not State certified, a valid State Certificate must be provided for an employee or independent contractor. 13-3638/91838 3 � ." ; Ordinance No. 3973 (13) The original valid and current ID Card issued by CAMTC. If establishment owne its not State certified, a valid ID Card must be provided for an employee or indepe dent contractor. (14) The name and address of any massage business or other like business owne or operated by any person whose name is required to be given pursuant to this section for the ten(10) years immediately preceding the filing of the application (15) A description of any other business to be operated on the same premises, or on adjoining premises, owned or controlled by the applicant. (16) A signed statement authorizing the City, its officers, agents and employees,to seek information and conduct an investigation into the truth of the statements set forth in the application and to ensure continual compliance with all applicable provisions of law. (17) A signed statement that the business owner shall employ only State Certified Massage Practitioners or Therapists to provide massage services/ (18) A signed statement that all independent massage practitioners on the establishment premises will be in possession of a valid current city business license. (19) Completed Fingerprinting and background check/for any business owner or operator applying for an Establishment Registration Certificate who is not otherwise certified by CAMTC. (20) Payment of an Establishment Registrations Q rtificate fee set by council resolution. (b) An Applicant who is a business owner, operator or sole proprietor and who is not CAMTC certified, must submit current background and fingerprint information to determine whether the Applicant has any of the following: (1) All convictions for any crime i/Volving conduct which requires registration under California Penal Code Section 290 (Sex Offender Registration Act). (2) Convictions for violations of California Penal Code Section 266i (pandering), 315 (keeping or residing in huse of ill-fame), 316 (keeping disorderly house), 318 (prevailing upon person to visit place for gambling or prostitution), 647(b) (prostitution); 653.23(supervision of a prostitute); 415 (disturbing the peace). (3) Convictions of an�felony offense involving the sale of a controlled substance specified in Secti©n 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code. (4) Convictions of crimes designated in Government Code Section 51032, or any crime involving dishonesty, fraud, deceit, violence or moral turpitude. (5) All injunctions for nuisances under Penal Code Section 11225-11235. (6) Convictions in any other state of any offense which, if committed or attempted in this state, would have been punishable as one or more of the referenced offenses of this subpart. (7) Conspiracy or attempt to commit any such offense described in subsections (1)-(6) of this/subpart. (c) The applicant, corporation or partnership shall designate one of its officers or general partners to pact as its responsible managing officer/employee. Such person shall complete and sign all application forms required of an individual applicant under this Chapter. The corporation's or partnership's responsible managing officer must, at�all times meet all of-the ... s, 13-3638/91838 4 Ordinance No. 3973 requirements set by this Chapter or the corporation's or partnership's Establishment R tration Certificate shall be suspended until a responsible managing officer who meets suc equirements is designated. If no such person is designated within ninety (90) days, the corporation's or partnership's Establishment Registration Certificate is deemed canceled and a new application for registration must be filed. (d) A signed statement that the owner/applicant shall be responsible for the conduct of all employees or independent contractors working on the premises of the Pu iness and acknowledging that failure to comply with California Business & Professions Code section 4600, et seq. with any local, state or federal law, or with the provisions ofthis Chapter may result in the revocation of the Establishment Registration Certificate. (e) Payment of a nonrefundable registration fee in an amo established by resolution of the City Council. (f) Upon receipt of the completed application,the Chief of Police or Designee shall refer the application to other City departments that may inspect the premises proposed to be used as a massage business and shall make a written recommendation to the Chief of Police or Designee concerning compliance with the respective requirements. (g) The Chief of Police or Designee shall have u to sixty (60 Calendar days after the g � p Y ) Y submission of all required information to complete an investigation. SECTION 5. Section 5.24.030 of the Huntington Beach Municipal Code is hereby amended to read as follows: 5.24.030 Massage establishment or services—Business License Reguired. (a)Any person, association, corporration,partnership or other entity desiring to operate a massage establishment or provide massage services shall obtain a business license and provide the following relevant information" (1)Full name of certificate holder(if applicable). (2) Date of Birth (3) State issued identification number(if applicable). (4) Social Se purity Number. (5) Home address and phone number. (6) Work address and phone number. (7) Colorphotograph of the certificate holder. (8) Proof of State certification for those who will provide massage services. (b) Prior to suuLitting the massage business license application,the fees as established by resolution of the City Council shall be paid to the City of Huntington Beach. The Zpplication for the massa a business license does not authorize o eration of a massage (c) Cg p establishment or performing massage services until the business license is issued. 13-3638/91838 5 i Ordinance No. 3973 (d) It shall be the responsibility of each massage business owner or operator to file copies or provide other evidence of the certificates held by the persons who are providing massage/ services at the business. (e) It shall be the responsibility of each massage business owner or operator to notify the City of any intention to rename, change management, or convey the business to another person. SECTION 6. Section 5.24.035 of the Huntington Beach Municipal C6de is hereby added to read as follows: 5.24.035 Approval or denial of Establishment Registration Certificate. (a)An Establishment Registration Certificate shall be issued by the/Chief of Police or Designee to any Certified Sole Proprietorship that demonstrates all of the following: 1. The operation, as proposed by the applicant, if permitte�d, would comply with all applicable laws, including, but not limited to, the City's building, zoning, business license, and health regulations and all requirements listed in this Chapter; 2. The owner is the only person employed or used by that business to provide massage services; 3. The owner holds a valid and current State Certificate issued pursuant to Chapter 10.5 of the California Business &Professions Code and that the owner/applicant is the same person to whom the CAMTC issued a valid and current State Certificate and identification card; 4. The applicant possesses a valid business license issued pursuant to the Huntington Beach Municipal Code; and 5. The applicant has not failed to provide information, assurances, or documentation required by this Chapter, has not failed to reveal any fact material to qualification, or has not supplied information that/is untrue or misleading as to a material fact pertaining to the qualification criteria. / (b)An Establishment Registration Certificate shall be issued by the Chief of Police or Designee to any Certified Massage Business that demonstrates all of the following: 1. The operation, as proposed by the applicant, if permitted, would comply with all applicable laws, including, but not limited to, the City's building, zoning, business license, and health regulations and all requirements listed in this Chapter; 2. The massage business employs or uses only Massage Practitioners with CAMTC State Certificates whose certifications are valid and current and that owners of the State Certificates/are the same persons to whom CAMTC issued valid and current identification cards; and 3. The applicant has provided all information, assurances, or documentation required by this chapter, has not failed to reveal any fact material to qualification, and has not supplied information that is untrue or misleading as to a material fact pertaining to the qualification criteria. 13-3638/91838 6 " Ordinance No. 3973 professional, as defined in this section, must be present at ali times when a student is performing their duties. (i) Owners of stand alone hotels with more than 1`00 on-site rooms for rent and�which provide massage services for their guests on site by a state certified massage pra itioner or therapist. SECTION 8. Section 5.24.045 of the Huntington Beach Municipal�Code is hereby added to read as follows: , F 4 04 Health f R ui ments. All remises of a Certified'Massa a Business shall 5.2 . 5 & Safety ea re be subject to periodic inspection by the City for compliance with health, safety, and building standards and all such establishments shall comply with the following requirements: (a) Sin- subject to applicable provisions of the City's codes, a4ecognizable 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 i!,in such room or enclosure. (c)Equipment - adequate equipment acceptable to the Orange County Health Department 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. s (e)Linen storage-closed cabinets-shall be provided and utilized for storage of clean linens, and approved receptacles acceptable to�the Orange County Health Department shall be provided for the deposit of soiled linen. (f)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 the Orange County Health Department. b SECTION 9. Section 5.24.050 of the Huntington Beach Municipal Code is hereby added to read as follows: t 5.24.050 Massaaekstablishment operation. Every massage establishment shall comply with the following operating requirements: (a) (1) ,{Each person employed or acting as a massage therapist or massage practitioner shall have a valid certificate issued by the California Massage Therapy Council, the original of which shall be conspicuously posted in public view. The Certificate Holder shall have his or her identification card in his or her possession while providing massage services. 13-3638/91838 8 Ordinance No.3073 (2) It is unlawful for the owner, operator, responsible managing employee,manager or certificate holder in charge of or in control of the massage establishment/to employ or permit a person to act as a massage therapist or massage practitioner who does not possess a valid massage therapist or massage practitioner/certificate issued by the California Massage Therapy Council. (3) No business, except those exempted under section 5.24.040 herein,may employ anyone to provide massage or allow anyone to massage unless the massage provider possesses a valid massage certificate issued by the California Massage Therapy Council. (b)No massage establishment shall operate nor shall any massage beya ministered in any massage establishment between the hours of 11:00 p.m. and 8:00 a.m. The hours of operation must be displayed in a conspicuous place in the lobby within the massage establishment and in any front window clearly visible from outside the establishment,/ (c) Any massage establishment or business shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services are certified by the California Massage Therapy Council. ' (d) Massage therapists and massage practitioners 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. r° (e)Areas where massages are to be performed shall be separated by a non-lockable door unless there is no staff available to assure security for clients and massage staff who are behind closed doors. 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. (f)Towels and linens shall not bemsed on more than one (1)patron unless they have first been laundered and disinfected. Disp sable towels and coverings shall not be used on more than one (1)patron. f, yr (g) 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 Orange County Health Department. Bathtubs/hall 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. (h) Instruments utilized in performing massage shall not be used on more than one(1)patron unless they have been sterilized using approved sterilizing methods. (i) 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. 13-3638/91838 9 Ordinance No. 3973 (j) The owner or operator of the massage establishment shall keep a complete and cu ent list of the names and CAMTC Certificate numbers of all massage therapists, massage pra itioners and employees of the massage-establishment, and the name and residence addresses o the manager or managing employee purported to be principally in charge of the operation of e massage establishment. This roster shall be kept at the premises and be available for in ection by officials charged with enforcement of this Chapter. (k)No part of the establishment shall be used for residential or sleeping purposes. 1 Eve massage establishment shall be open during hours when massy a is being provided for O Every � p g g g inspection by any officer of the City of Huntington Beach. (m) All doors leading into a massage establishment or area wher massages are being performed shall remain unlocked during business hours unless there is no taff available to assure security for clients and massage staff who are behind closed doors. (n) The Owner shall have a continuing obligation to noti-y the Chief of Police in writing of any changes in massage practitioners and owners, operator or staff within seven(7)calendar days of such change. (o)Every massage business owner or operator s 11 report in writing immediately to the Chief of Police any and all changes of address or ownership of the massage business. SECTION 10. Section 524.055 o the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.055 Outeall Massages. No outc li massage, which is a massage in a private residence or at a location which does not regularly rovide or permit massage, shall be conducted in a hotel or motel room, or in the private resi nce of the Certified Massage Practitioner. No outcall massage may be provided in a private residence or business not regularly providing massage services between 11 p.m. and $a.m. SECTION 11. Section 5.24.060 of the Huntington Beach Municipal Code is hereby � p Y added to read as follow 5.24.060 Massage Establishment- Prohibited Conduct: (a) No alcoholic beverages shall be sold, served, or furnished on the premises of any massage establishment without a valid alcoholic beverage license from the State and conditional use permit from�the City- (b) Duririg the hours of operation, visitors shall not be permitted in massage therapy rooms except as follows: (1)the parents or guardian of a patron who is a minor child may be present in the massage therapy room with that minor child; (2)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 r{ J 13-3638/91838 10 Ordinance No.3973 (3)the conservator, aid or other caretaker of a patron who is elderly or disabled may b. present in the massage therapy room with that elderly or disabled person. (c) No operator shall hire, employ or allow a person to perform massage services unless such person possesses a valid CAMTC Certificate. Each Operator of a massage establishment shall verify that all persons hold the appropriate State Certificate required by this Chapter. (d) No electrical,mechanical or artificial device shall be used by any massage establishment staff for audio and/or video recording or for monitoring the performance/ef a massage, of the conversation of other sounds in the massage rooms,without the knowledge and written consent of the patron. (e) A massage therapist or massage practitioner shall not violate the provisions of Sections 647(a) and (b) of the California Penal Code, or any other state law involving a crime of moral turpitude, and such practices shall not be allowed or permitted by anyone. A massage therapist or massage practitioner shall be full clothed at all times and (� g p g p Y shall not expose their genitals, pubic area, buttocks, or inAe case of female therapists or practitioners,their breasts, and such practices shall not be allowed or permitted by anyone. (g) A massage therapist or massage practitioner shall not massage, fondle, or otherwise have intentional contact with the genitals or anus of an patron, or the breasts of a female patron and such practices shall not be allowed or permitted by an one. (h) A massage therapist or massage practii loner shall not give a massage unless the breasts of female patrons are covered and the genitals/of all patrons are covered,and such practices shall not be allowed or permitted by anyone. SECTION 12. Section 5.2 .065 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.065 Responsibility. The owner or operator of a massage business or establishment shall be responsible for the conduct of all employees or independent contractors working on the premises of the business. SECTION 13. /Section 5.24.070 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.070 Inspectio/by City officials and notices of violation. (a) The investigating officials of the City, as designated by the Chief of Police, include, but are not limited/to, representatives of the City's Police Department, Finance Department, Fire Department, Planning and Building Department and the County Health Officer, shall have the right lto enter the premises from time to time during regular business hours prior to the issuance of an Establishment Registration Certificate and subsequently for the purpose of making reasonable inspections to enforce compliance with this Chapter and with building, , 13-3638/91838 11 ✓ Ordinance No. 3973 fire, electrical, plumbing, and/or health and safety regulations. In the event an Establishment Registration Certificate has been issued, it may be revoked or sus ended in the manner hereinafter set forth in this Chapter. (b) No person shall refuse to permit or interfere with, a lawful inspection or compliance check of the premises by City or County officials. (c) Whenever any City official inspects a massage business and finds that any provision of this Chapter has been violated, he or she shall give notice of such violation by means of an inspection report or other written notice including but not limited/to issuing a citation for each and every violation of this Chapter or other applicable laws. In any such notification, the investigating person shall: (1) Set forth the specific violation or violations found, and shall notify the Registered Certificate Holder that failure to comply wit y notice issued in accordance with the provisions of this Chapter may result in the revocation or suspension of the Establishment Registration Certificate`s (2) The Registered Certificate Holder mayy be issued a warning that any future violation of this Chapter may result' n suspension or revocation of the Establishment Registration Certif Cate or the City officials may establish a specific and reasonable period of time for the correction of the violation or violations. No time to correct�need be given for health and safety violations or violation of criminal law. 0) The Registered Certific�atte Holder and operator shall take immediate action to correct violations and the City officials may re-inspect the business for compliance. Municipal SECTION 14. Section 24.075 of the Huntington BeachCode is hereby added to read as follows: r� 5.24.075 Transfer of Establishment Registration Certificate. An Establishment Registration Certificate shall not be transferrable between persons or business owners. The changeb/f business address shall be allowed on an Establishment Registration Certificate, providing that the same persons are listed as the business owner, the new business location complies with all provisions of this Chapter, and the location transfer fee is paid upon request of transfer from one business location to another business location. SECTION 15. Section 5.24.080 of the Huntington Beach Municipal Code is hereby added to read as follows: 13-3638/91838 12 Ordinance No.3973 5.24.080 Establishment Registration Certificate Expiration and Renewal. An Establishment Registration Certification shall be valid for one year, coinciding witZthecity business license effective and expiration dates. SECTION 16. Section 5.24.085 of the Huntington Beach Municipal ,ode is hereby added to read as follows: 5.24.085 Revocation or Suspension of Establishment Registration Certificate—Massage Business. ' (a) An Establishment Registration Certificate may be suspended or revoked upon any of the following grounds: (1) There is probable cause to believe an owner, operator, corporation, or partner who owns five (5)percent or more of the massage business has committed a violation that could have caused denial of the Establishment Registration Certificate. (2) There is probable cause to believe a Registered Certificate Holder has made a material misrepresentation on the application for an Establishment Registration Certificate or renewal. (3) There is probable cause to believe the Registered Certificate Holder has engaged in conduct or operated the massage business or as a Massage Practitioner in a manner which violates any of the provisions of/this Chapter, any conditions of the Establishment Registration Certificate, or any of the laws which would have been grounds for denial of the Establishment Registration Certificate. (4) The owner or operator of a Certified Massage Business employs or uses non-certified massage technicians t perform massage services. (5) Violations of th`is Chapter or of California Business &Professions Code section 4600, et seq. hayd occurred on the business premises. (6) The Registered Certificate Holder has failed to comply with one or more of the health and safety requirementsunder this Chapter. I (7) The Registered Certificate Holder has engaged in fraud, misrepresentation, or false state rents in obtaining or maintaining an Establishment Registration Certificate. (b) No massage establishment shall be established at a location where a massage establishment was closed due to conduct which violated any of the provisions of this Chapter for 1 year. 13-3638/91838 13 Ordinance No. 3973 SECTION 17. Section 5.24.090 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.090 Revocation or Suspension Hearing. (a) Notice of revocation or suspension shall contain a statement of the vio Zation(s)which constitute the basis for suspension or revocation and information about the right to appeal and the necessity of an appeal as a prerequisite to litigation. The Registered Certificate Holder shall have ten(10) calendar days to appeal to the Chief of Police or Designee. (b) A hearing shall be scheduled with the Chief of Police or Designee upon not less than ten (10) calendar days notice to the Registered Certificate Holder. (c) Notice shall be given by personal service or certified or registered mail to the address shown on the last application or renewal. If reasonable/attempts to otherwise serve are not successful, service may be provided by first class/mail. (d) Service shall be deemed complete when persona., service is made, when the certified letter is delivered, or when the decision is mailed by first class mail. (e) Unless otherwise specifically prohibited by`law, the burden of proof is on the Registered Certificate Holder/applicant in any hearr fig or other matter under this Chapter. Formal rules of evidence shall not apply to the hearing. (f) If the Establishment Registration Certificate is suspended or revoked,the Establishment Registration Certificate shall be%sirrendered. SECTON 18. Section 5.24'095 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.095 Appeals from Revocation, Suspension or Denial of Establishment Registration Certificate. (a) Appeals from any decision of the Chief of Police under this Chapter shall be in writing, shall clearly state all applicable basis for the appeal, and shall be filed with the City Clerk not later than fifteen( ) calendar days following the date of notice of the decision. (b) The City/Clerk shall not accept an appeal, and no hearing shall be held, unless the appellant has paid a filing fee, in an amount set by resolution of the City Council, to defray the cost of such appeal. Any appeal without the timely payment of fees shall be considered to be untimely. , (c) The scope of the appeal hearing pursuant to this section shall be limited to those issues raised by the appellant in the written appeal, as submitted pursuant to subsection(a) of this section f 13-3638/91838 14 Ordinance No.3973 (d) Upon receipt of a timely filed appeal, the City Clerk shall set the matter for hearing before the City Manager or Designee. The hearing shall be held not fewer than ten(10) calendar days and not more than thirty(30) calendar days from the date of the appeal request. The hearing may be continued from time to time upon the mutual consent of the parties. (e) The appellant shall be provided with notice of the time and place of the appeal hearing, as well as a copy of all relevant materials at least ten (10) calendar days prior to the hearing. SECTION 19. Section 5.24.100 of the Huntington Beach Mtinicipal Code is hereby added to read as follows: 5.24.100 Reapplication After Denial. No reapplication for an`Establishment Registration Certificate will be accepted within one year after an application or renewal is denied or an Establishment Registration Certificate is revoked, provided that, if an Establishment Registration Certificate is denied for the sole reason that a massage practitioner does not possess a CAMTC certification, reapplication may occur after CAMTC certification has been attained. SECTION 20. Section 5.24.105 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.105 Violation—Penalty. Any person violating this Chapter shall be guilty of a MISDEMEANOR,punishable by a fine of,one-thousand dollars ($1,000) or by imprisonment in the county jail for a period not to exceedsix (6) months, or by both such fine and imprisonment. SECTION 21. Section 5.24,410 of the Huntington Beach Municipal Code is hereby added to read as follows: ` f 5.24.110 Separate Violations./Each violation described in sections 5.24.045, 5.24.050, 5.24.055 and 5.24.060 shall constitute.,a separate violation and each violation may be charged as a separate count in the event of administrative or criminal enforcement action. 5,, / SECTION 22. Section 5.24.115 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.115 Unlawful Operation Declared Nuisance. 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. 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 abatement, removal or enjoinment thereof, in the manner provided by law. The City Attorney shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as shall abate or remove such massage establishment and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary' to the provisions of this Chapter. 13-3638/91838 15 Ordinance No. 3973 SECTION 23. Section 5.24.341 is hereby added to Chapter 5.24, said section to react as follows: 5.24.341 Severability. If any section, subsection, phrase or clause of this section is forany reason held to be invalid, such decision shall not affect the validity of the remaining portion,of this section. The City Council declares that it would have adopted this ordinance and each section, subsection, phrase or clause thereof irrespective of the fact that any one or more sections, subsections, sentences, phrases or clauses be declared invalid. / SECTION 24. Sections 5.24.150, 5.24.160, 5.24.170, 5.24.�5, 5.24.230, 5.24.235, 5.24.240, and 5.24.340 shall be deleted in their entirety. SECTION 25. This ordinance shall become effectivre36 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 day of �'} , 2013. Mayor ATTEST: OVED AS TO FORM: City Clerk C y Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: City Manager ,d Chief of Police t t / 1 i 1 I I 13-3638/91838 16 ATTACHMENT #2 „d _6„ Item ,o . zo Ordinance No. 3973 Chapter 5.24 MASSAGE ESTABLISHMENTS (1213-6/66, 1293-3/67,2007-10/75,2187-6/77,Urg.2361-3/79,Urg.2394-8P79,2466-2/81,2726-10/84,3173-10/92,3267-9/95, 3467-6/00,3694-2/05.3716-7/05,3738-7/06,3844-11/09,3876-5/10) Sections: 5.24.010 Definitions 5.24.015 Authority 5.24.020 Massage e-Certification/Establi hment Re is ati n Certificate rRequired 5.24.025 A lication for Establishment Re is ati rtificate 5.24.030 Massage establishment or services-Bus' ess License rRequired 5.24,035 A �pproval or denial of Establishment Re�istr 'on Certificate 5.24.040 Repealed r }ee N 384^ ' 1/09 xem s 5 24 045 Health & Safety Requirements 5.24.050 Massage establishment operation 5 24.055 Outcall Massages 5.24.060 Repealed Or aee44o-'2V^^/1 /�QMassage Establishment-Prohibited Conduct 5.24.065 Responsibility 5.24.070 ��epealed--9r� e� o^^ J,91nspection by City officials and notices of violation 5.24.075 Transfer of Establishment ReLration Certificate 5.24.080 Repealed -Brd eNe. 32-47 9/9-SEstablishment Registration Certif cate Expiration and Renewal 5.24.085 Revocation or Suspension f Establishment Registration Certifcate-Mas=e Business 5.24.090 Repealed- Revocation or Suspension Hearins� 5 24. 5 Appeals from cati us ensi n r Denialof Establishment Registration Certificate 5.24.100 Reapplication After Denial 5.24.105 Violation-Penalty 5.24.110 Separate Violations 5.24.115 UnlawfulO eration cl ed uisance 5.24.120 Repealed-Ordinanc No. 2466-2/81 5.24.125 Repealed- Ordinanc No. 3844-11/09 5.24.130 Repealed-Ordinanc No. 3844-11/09 5.24.140 Repealed-Ordinanc No. 3267-9/95 5.24 150 zenV iefis aeflifies 5.24.190 Repealed-Or dinfe No. 3 844-11/09 5.24.200 Repealed-Ordine No. 3844-11/09 5.24.210 Repealed-Ordine No. 3 844-11/09 5.24.220 Repealed Ordinance No. 3844-11/09 5.24.225 Outeall massages i, 5.24.230 Pr-ebibited eenduo 5 24.233�p� � � �°�, ! � ¢! eiairT 5.24.250 Repealed-Ordinance No. 3844-11/09 5.24.260 Repealed-Ordinance No. 3844-11/09 5.24.270 Repealed-Ordinance No. 3844-11/09 5.24.275 Repealed-Ordinance No. 3844-11/09 5.24.280 Repealed-Ordinance No. 2726-10/84 5.24.285 Repealed-Ordinance No. 3844-10/84 5.24,290 Repealed-Ordinance No. 2726-10/84 5.24.300 Repealed- Ordinance No. 2726-10/84 Huntington Beach Municipal Code Chapter 5.24 Page 1 of 18 5/19/10 Item 10. - 21 HB -362- 5.24.310 Repealed—Ordinance No. 2726-10/84 5.24.320 Repealed—Ordinance No. 2726-10/84 5.24.330 Repealed—Ordinance No. 2726-10/84 5.24.341 Severability 5.24.010 Definitions. Unless the particular provision or the context otherwise requir s,the definitions and provisions contained in this section shall govern the construction,m g, and application of words and phrases used in this chapter. a "A lira t"means an applicant for an Establishment Registration e ' i "Calif Massage Them Council" r" "me he State n n ofit or ation created to regulale and issue massage practitioner and thera ' t ce ificate�Dursuant to California Business and Professions Code Section 4600, at sea. c "Certified" shall mean my valid certificate issued in accordance withSections 2600 through 4620 of the California Business and Professions Code. (d) "Certified Massage Business"means au business that possesses a valid citv business license and an Establishment Registration Certificate and where the only persons employed or used by that business to provide massage services have current and 3Wid State Certifications. (e) "Certified Massage Practitioner"means any person holding Ligent and valid State Certificate issued by the California Massage Therapy Council pursuant to California Business and Professions Code Section 4600 et sea.. whether as a rriassage practitioner or massage therapist, as defined therein. (f) "Certified Sole Proprietorship"mean anv massage business where the owner is the only person employed or used by that business to provide massa a services and the owner has a current and valid State Certification and an Establishment Registration Certificate g) "City"means the City of Huntington Beach. (h) "Chief of Police or Designee" shall mean theverson or persons designated to administer the provisions of this Chapter. ,�{ ^ Cl) "Compensation" shall mean the pavmem , loan. advance, donation, contribution, deposit or gift of money or anything of value. (i) "Employee"means any person other than a massage practitioner,manager or owner or operator, who renders any service,kith or without compensation,to the owner or operator of a massage establishment relating to the day-to-day operation of the massage establishment whether as an employee or indejendent contractor. (k) "Establishment Registration Certificate—Business"or"Business Registration Certificate" means a certification issued by the Chief of Police upon submission of satisfactory evidence as required that a massage business or sole proprietorship employs or uses only certified _massage therapists or praclitioners possessing valid and current State Certifications and has satisfied all other requirements pursuant to the provisions of this Chapter. yf (1) For pu oses of this Chapter, the terms "massage" and"bodywork" shall have the same j . meaning (amp "Massage"-or,/A massage therapy", or bodywork means any method of pressure on, or friction against or stroking,kneading, rubbing,tapping,pounding,vibrating, or stimulating the external parts ofthe human body with the hands or with the aid of any mechanical or electrical apparatus or appliance, or with or without supplementary aids such as rubbing Huntington Beach Municipal Code Chapter 5.24 Page 2 of 18 5/19/10 HB -363- Item 10. - 22 alcohol,liniment, antiseptic, oil,powder, cream, ointment, or other similar preparations commonly used in this practice. (bn) "Massage establishment" means any establishment having a fixed place of business where any individual, firm, association,partnership, corporation, or combination of individuals, engages in, conducts, carries on or permits to be engaged in, conducted or carried on, massages, baths, or health treatments involving massage or baths. (3467-6/00,3844-11/09) (eo) "Massage therapist,""bodyworker,""bodyw k therapist,"or"massage and bodywork therapist" means a person who is certified by th California Massage Therapy Organizatie Council under Subdivision(c) of ection 4601 of the California Business and Professions Code, and who administers massa e for compensation. (2395-11/79,2466-2/81, 3267-5/95,3844-11/09) (dp) "Massage practitioner,""bodywork pra itioner,"or"massage and bodywork practitioner"means a person who is certified by the California Massage Therapy Ofganizatio Council under Subdivision (I of Section 4601 of the California Business and Professionals Code, and who administersrinassage for compensation. (3267-5/95,3844-11/09) (d)-"Operator"means the individual who manages the massage establishment Evidence of management includes but is not limited to evidence that the individual has power to direct or hire and dismiss employees, control h©urs of operation, create policy or rules or purchase supplies. An operator may also be an.owner. (er)"Organization"means the Califorxu Massage Therapy Council created pursuant to Sections 4600-4620 of the California Business and Professions Code. (3267-9/95,3844-11/09) ( " 77 aftd" 77 Chapter-, � shall have the s-am—e g (3267 9196 3467 cmn 3844 11 m9 (g_� "Owner"means the individ al(s)whose name appears on the City of Huntington Beach business license. (3267-9/95) t "Registered Certificate H lde "means a business that has been issued Establishment Registration Certificate by th6 Ci 's Chief of li "State Certification" or"St e Certificate"means a Yalid and current certification propully issued by the CAMTC purAhant to California Business d Professions CQde Section 4600 e mq-. "Operator-" means t—h.e.—Al—A-1 who fflana es the massage establishment. Evidffiee e management inelud— mited to evideftee that the individual has power-te dir-ee4 e.r- hir-e and dismiss J , j-.Y alse be aft ovvmff. (3267 9/ GG 77 GG 7! J lean, ! donation, ) J gift of money or 5.24.015 Authority. The Chief of Policed or Designee shall.have the power and authority to promulgate rules, regulations, and requirements consistent with the provisions of this Chapter d other law in connection with the issuance of an Establishment Registration Certificate The Chief f Police or Designee shall have authority to make decisions investigatQand take action under this Chapter. Huntington Beach Municipal Code Chapter 5.24 Page 3 of 18 5/19/10 Item 10. - 23 HB _364_ 5.24.020 Massage eCertification Establishment Registration Certificate Required. It shall be unlawful for any person, association,partnership, corporation or other entity to engage in, conduct or carry on, permit to engage in, in or upon any premises within the City of Huntington Beach the business of providing massages in exchange for compensation without being currently certified as a massage practitioner or massage therapist by the California Massage Therapy Argnniza#ie#Council in accordance with Sections 4600 through 4620 of the California Business and Professions Code and be a Certified Massage Business as described in 5 24 O10(dl herein. (2395-11179.3267-9195,3844-11/09) . 4.025 Application for Establishment Registration Certificate. a application for an Establishment Registration Certificate shall be filed on forms r v'ded by the .sty, submitted under penalty of perjury, and shall include the following information: (1) The full true name under which the business will be conducted (2) The full true name of the applicant. (3) A complete statement listing and explaining any and all aliases and fictitious names used by the applicant within the last ten(10)years. (4) The present or proposed business address where the business is to b. conducted (5) A complete description of all services to be provided at the proposed massage establishment. (6) Business Entity Type. / (7) Tax ID number used for the income tax reporting for the business applying for (8) The residence address of the applicant. (9) Date of Birth. (10) Social Security Number. (11) A valid and current driver's license and/or identificati/card issued by a state or federal government agency or other photographic identification bearing a bona fide seal by a foreign government. (12) The original valid and current State Certificate issued LbCAMTC. If establishment owner is not State certified a valid State Certificate mAst be provided for an employee or independent contractor. ' (13) The original valid and current ID Card issued by C'AMTC If establishment owner is not State certified a valid ID Card must be provided for an employee or independent contractor. (14) The name and address of any massage business or other like business owned or operated by any personwhose name is required' e given pursuant to this section the ten 10 ears immed'atel jr n the lip f t a licat'do. (15) A description of any other business to be operated on the same premises or on adioining premises, owned or controlled by the applicant. (16) The name and address of the owner and lessor of the real property if any.upon or within which the business is tribe conducted, including the mailing address lessee submits lease or rental payments to. (17) A copy of the current lease agreement with lessor of the real prapertv which will include yrapertv ownerArsonal name,business name, if applicable, complete valid mailing address, andi2hone number. (18) A signed statement authorizing the City, its officers, agents and employees. to seek information and conduct an investigation into the truth of the statements set forth in the a licat o ensure continual compliance with all applicable r vi io of law. (19) A signed statement that the business owner shall employ only State Certified Massage Practitioners or Therapists to provide massage services. Huntington Beach,Municipal Code Chapter 5.24 Page 4 of 18 5/19/10 HB -365- Item 10. - 24 (20) A signed statement that all persons on establishment premises will be State Certified Massage Practitioners or Therapists whether a business employee or independent contractor. (21) A signed statement that all independent massage practitioners on the establishment premises will be in possession of a valid current city business license. (22) Completed Fingerprinting and background check for any business owner or operator applying for an Establishment Registration Certificate who is not otherwise certified by CAMTC. (23) Payment of an Establishment Registration Certificate fee set by council resolution. (b) An Applicant who is a business owner. operator or sole proprietor and who is not CAMTC certified, must submit current background and fingerprint information to determine whether the Applicant has any of the following: (1) All convictions for any crime involving canduct which requires registration under California Penal Code Section 290 (Sex Offender Registration Act). (2) Convictions for violations of California Penal Code Section 266i (pandering). 315 (keeping or residing in house of ill-fame), 316 (keeping disorderly house), 318 (prevailing upon person to visit place for gambling or prostitution). 647(b) (prostitution): 653.23 (supervision of a prostitute): 415 (disturbing the peacel'. (3) Convictions of any felony offense involving the sale of a controlled substance specified in Section 11054. 11055, 11056, 11057, or 11058 of the Health and Safety Code. (4) Convictions of crimes designatedfin Government Code Section 51032 or any crime involving dishonesty, fraud, deceit, violence or moral turnitude. (5) All injunctions for nuisances under Penal Code Section 11225-11235 (6) Convictions in any other stateiof any offense which, if committed or attempted in this state. would have been punishable as one or more of the referenced offenses of this subpart. (7) Conspiracy or attempt to c/mmit anv such_offense described in subsections(1)-(6) of this su art. (c) The applicant, corp ration or partnership shall deli ate one of its officers or general partners to act as its responsible managing officer/emplovee. Such person shall complete and sign all application forms required of an individual applicant under_this Chap ter. The corporation's or partnership's responsible managing officer must, at all tries meet all of the reau' ement set by this Chapter or the corporation's or partnership's Establishmed Registration Certificate shall be suspended until a responsible managing officer who meets such requirements is designated If no such person is designated within ninety(90) days, the corporation's or partnership's Establishment Registration Certificate is deemed canceled and a new application for registration must be filed. d A signed statement that th oymerLapplicant shallbe resDQnsible for the conduct of all em to ees or independent contractors,working on the premises of the business and acknowledging that failure to c v with California Business Professions Code section 4600, et sea. with anv local, state or federal law, or with the/provisions of this Chapter may result in the revocation of the Establishment Registration Certificate. e Zoning consistenC check in writing from the CiPlanning and Building Department o in consistency check does not confer or authorize any entitlement to a use permit or building permit or similar, which process. if applicable, is separate from the Establishment Registration Certificate process. Huntington Beach Municipal Code Chapter 5.24 Page 5 of 18 5/19/10 Item 10. - 25 HB -366- (f) Payment of a nonrefundable re i_ strafon fee in an amount established by resolution of the City Council. (g) Upon receipt of the completed application. the Chief of Police or Designee shall refer the .application to other City departments that may inspect the premises proposed to be used as a massage business and shall make a written recommendation to the Chief of Police or Designee concerning compliance with the respective requirements. The Chief of Police or Designee shall have up to six 60 Calendar d s after the submission/of all required information to complete an investigation. 5.24.030 Massage establishment or services—Business License Required. (a) Any person, association, corporation,partnership or other entity desiring to operate a massage establishment or provide massage services shall apply€erobtain a business license and provide the following relevant information: (3267-9/95,3738-7/06,3844-11/09) F (1) Full name of certificate holder(if applicable. (38/44-11/09) (2) Date of Birth. (3844-11/09) (3) State issued identification number(if applicable)_ / (3844-11/09) (4) Social Security Number. (3844-11/09) (5) Home address and phone numbej_. (3844-11109) (6) Work address and phone number. (3844-11/09) (7) Color photograph of the certificate holder, y (3844-11/09) (8) Proof of State certification for those who will provide massage"services. (3844-11/09) (b) Prior to submitting the massage business license application,the fees as established by resolution of the City Council shall be paid to the City of Huntington Beach. (2395-11R9, 3267-9/95,3844-11/09) (c) The application for the massage business license doesriot authorize operation of a massage establishment or performing massage services untilZ thebusiness license is issued. (3844-11/09) (d)It shall be the responsibility of each massage business owner or operator to file copies or provide other evidence of the certificates heldliy the persons who are providing massage services at the business. (3844-11/09) x�°' (e) It shall be the responsibility of each massage business owner or operator to notify the City of any intention to rename, change management, or convey the business to another person. (3844-11/09) 5 4.035 Approval or denial of Establishment Registration Certificate. (al An Establishment Reeistra lop Certificate shall be issued by the Chief of Police or Designee to any Certified Sole Proprietorship-fhat demonstrates all of the following 1. The operation as=proposed by the applicant if permitted would comply with all applicable laws, including but not limited to.the City's building,zoning,business license, and health regulations and all requirements listed in this Chapter: 2. The owneris the only person employed or used by that business to provide massage services; 3. The owner holds a valid and current State Certificate issued pursuant to Chapter 10 5 of the _Califonua Business&Professions Code and that the owner/applicant is the same person to whom the CAM TC issued a valid and current State Certificate and identification card; Huntington Beach Municipal Code Chapter 5.24 Page 6 of 18 5/19/10 HB -367- Item 10. - 26 4. The applicant possesses a valid business license issued pursuant to the Huntington Beach Municipal Code: and 5. The applicant has not failed to provide information assurances or documentation required_ by this Chapter, has not failed to reveal any-fact material to qualification or has not supplied information that is untrue or misleading as to a material fact pertaining to the gualification criteria, (b) An Establishment Registration Certificate shall be issued by the Chief of Police or Designee to any Certified Massage Business that demonstrates all of the following i 1. The operation as proposed by the applicant if permitted would comply with all applicable laws including. but not limited to. the Citv's building, zoning. business license and health regulations and all requirements listed in this hapter: 2. The massage business employs or uses only Massage Practitioners with CAMTC State Certificates whose certifications are valid and current and that owners of the State Certificates are the same persons to whom CAMTC issued valid and current identification cards• and 3. The applicant has provided all information assurances or documentation required by this cha ter. has not failed to reveal anv fact material to qualification and has not supplied information that is untrue or misleading as to/a material fact pertaining to the qualification cri eria. NO The background check for anv applicant/owner authorized by this Chapter shows that such person has not been required to register under the provisions of Section 290 of the California Penal Code: there exists no probable cause to believe a violation of the crimes indicated in section_5 24 025(bl herein or California Penal Code Section 415• has not had an individual or business permit or license with v agency board city, county territory, or state denied revoked restricted or suspended within the last five(5)ye rs; and has not been subject toian injunction for nuisance under Penal Code Section 11225-11235 within thQ last five(51 years (d) The Chief of Police or esi nee may deny issuance of an Establishment Registration Certificate or non-compliance with any of the above described requirements 5.24.040 Ex m Lions. Exe=tions do nit apply o ind n nt c ntrac rs o f i exempted professionals. The provisions/of this Chapter shall not apply to the following classes of individuals or groups while engaged ib or performing the duties of their respective professions: l a Physicians, surgeons. chiro ract rs osteo aths acupuncturists, and h ra is physical t C p tS duly licensed to practice in the State oaf California_ b Hospitals, nursina homes san't ums or other health care, acil'ti s duly icens d by h 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. ` (c) Registered or licensed vocational nurses duly registered by the State of California Huntington Beach Municipal Code Chapter 5.24 Page 7 of 18 5/19/10 Item 10. - 27 HB -368- (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. Trainers of any amateur, semi-professional or professional athlete or athletic team. (g) No employed or independent contractor massage technician may administer massage oz otherwise eat or care f r patients other than patients of t-be-practitioner and those patients must have bee escr'be assag-Q therapy by a practitioner—listed in this 'on prior to the admi ' tration of the massage therapy. Physical Therapist students, and Massage Therapist students earnin racti or school/education. and who are currenAy enrolled in a licensed prograrn for P sic a3�TheraW,throu recognized schoolleducation center can work under the direct supervision of xempted professional as defined in this section. Direct supervision means that an exempted professio(nal, as defined in this section must be present at all times when a studen is erformin ei d ties/ (i) Owners of stand alone hotels with more than 100 on-site rooms for rent and which provide massage services for their guests on site by a state certified massage practitioner or therapist. 5.24.045 Health & Safety Requirements. All premises of a Certified Massage Business shall be subject to periodic inspection by the City for compliance with health, safety.and building standards and 11 such establishments shall comply with the following requi-r�ements: (a) Sign - subject to applicable provisions of the Citv's co es 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 pro vide d"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 ale performed on patrons and shall be activated at all times while a patron is in such room or enclosure (c)Equipment- adequate eauipment�'acceptable to the Orange County Health Department for disinfecting and sterilizing instrunfents used in performing the acts of massage shall be provided (d) Water-hot and cold rum/na water shall be provided at all times. (e)Linen storage-closed cabinets shall be provided and utilized for storage of clean linens, and approved receptacles,dcceptable to the Orange County Health Department shall be provided for the deposit of soiled linen. (fl Massage table pads-pads used on massage tables shall be covered in a professional manner with durable,washable plastic or other waterproof material acce_pt_able to the_Orange County Healt Department` 5 24 050 Massage establishment operation Every massage establishment shall comply with the following operating requirement : Huntington Beach Municipal Code Chapter 5.24 Page 8 of 18 5/19/10 HB -369- Item 10. - 28 a) (1) Each person employed or acting as a massage therapist or massage practitioner shall have valid certificate issued by the California Massage Therapy Council,the original o which shall be conspicuously posted in public view and be visible from the entrance and/or reception and waiting area- The Certificate Holder shall have his or her identification card in his or her possession while providing massage services. (2) It is unlawful for the owner, operator,responsible managing employee, manager or certificate holder in charge of or in control of the massage establishment to employ or permit a person to act as a massage therapist or massage practitioner who does not possess a valid massage therapist or massage practitioner certificate issued by the California Massage Therapy Council. 3) No business, except those exempted under se lion 5.24.040 herein,may employ anyone to provide massage or allow anyone to massage unless the massage provider possesses a valid massage certificate issued bv the Califomia MassagTherapy Council. (b)No massage establishment shall operate nor shall any massage be administered in any massage establishment between the hours of 1 LDD pin—and 8A a.m. The hours of operation must be displayed in a conspicuous place in the lobby within the massage establishment and in any front window clearly visible from outside the establi hment. c)Any massage establishment or business shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services are certified by the California Massage Therapy Council. d)Massage therapists and massage practitioners 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. (e)Areas where massages are to be performed shall be separated by a non-lockable door unless there is no staff available to assure security rfor clients and massage staff who are behind closed doors Said door shall not be equipped with a"peepAmle"or any other device that allows anyone to see into or out of this room when the door is closed. (fl 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. (g)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 atdisinfectant approved by the Orange County ealth Department Bathtub shall be thoroughly cleaned after each use All walls ceilings floors and other physical facilities for the establishment must be ini good repair and maintained in a clean and sanitary condition (h)Instruments utilized in performing massage shall not be used on more than one(1)patron unless they have been sterilized using approved sterilizing methods (i) Where a covering is furnished by the massage establishment, it shall not be used by more than one(1) wan until it has first been laundered and disinfected. (2395-11/79, 3267-9/95) Huntington Beach Municipal Code Chapter 5.24 Page 9 of 18 5/19/10 Item 10. - 29 HB -370- (i) The owner or operator of the massage establishment shall keen a complete and current list of the names and residence addresses of all massage therapists massage practitioners and employees of the massage establishment, and the name and residence addresses of the manager or managing employee 12=orted 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 Cha er. (k)No part of the establishment shall be used for residential or sleeping purooses. (1)Every massage establishment shall be open during hours when massage is being provided for inspection by any officer of the City of Huntington Beach. (m)All doors leading into a massage establishment or area where massages are being performed shall remain unlocked during business hours unless there is no staff available to assure securi for clients d massage staff who are behind closed doors. (n)The Owner shall have a continuing obligation to notify the Chief of Police in wrizingf anv changes in massage practitioners and owners, operators or staff within seven(7) calendar days of such change. Every massage b s' ss owner or Werator shall rwortn writing mmedidWyto the Chief of Police v and all changes of address or ownership of the massage business. 5 24 055 Outcall Massages No outcall massage which is a massage in a private residence or at a location which does not regularly provide or permit massage, shallfbe conducted in a hotel or motel room, or in the private residence of the Certified Massage Practitioner. No outcall massage may be provided in a private residence or business not regularly providing massage services between 11 pm— and 8 a.m. 5 24 060 Massage Establishment-Prohibited C Baduc (a) No alcoholic beverages shall be sold.. ' ed, or furnished on the premises of any massage establishment without a valid alcoholic beverage license from the State and conditional use permit from the Ci (b) During the hours of operaf of n visitors shall not be permitted in massage therapy rooms except as follows: (1) the parents or guardian of a patron who is a minor child may be present in the massage therapy room with that minor child: (2)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(3)the conservator, aid or other caretaker of,a patron who is elderly or disabled_may be present in the massage theraav room ---- -- with that elderly orddisabled person. Cc l No open rator shall hire employ or allow a person to perform massage services unless such person possesses a valid CAMTC Certificate Each Operator of a massage establishment shall verify that all personshold the appropriate State Certificate required by this Chapter. g (d)! No electrical,mechanical or artificial device shall be used by any massage establishment staff for audio and/or video recording or for monitoring the performance of a massage, of the conversation of other sounds in the massage rooms, without the knowledge and written consent of the patron. Huntington Beach Municipal Code Chapter 5.24 Page 10 of 18 5/19/10 xB -371- Item 10. - 30 (e) A massage therapist or massage practitioner shall not violate the provisions of Sections 647(a) and (b) of the California_Penal Code, or any other state law involving a crime of moral to itude, and such practices shall not be allowed or permitted by anyone. (D A massage therapist or massage practitioner shall be fully clothed at all times and shall not expose their genitals,pubic area, buttocks, or in the case of female therapists or practitioners, their breasts, and such practices shall not be allowed or permitted by anyone. (g) A massage therapist or massage practitioner shall not massage, fondle, or otherwise have intentional contact with the genitals or anus of any patron, or the breasts of a female patron and such practices shall not be allowed or permitted by anyone. (h) A massage therapist or massage practitioner shall not give a massage unless the breasts of female patrons are covered and the genitals of all patrons are covered and such practices shall not be allowed or permitted by anyone. 5.24.065 Responsibility. The owner or operator of a massage business or establishment shall be responsible for the conduct of all employees or independent contractors working on the premises of the business. _ 070 Inspection by City offidals and notice of violation a e ' e ti tin fficials of the QiM as desi/ated by the Chief of Police, include,but n t limited to representatives of the itv's Police Den rtment Finance Department ire Department Planning and Building Department and the County Health Officer, shall have the right to enter the premises from time to time during regular�business hours prior to the isance of an Establishment Registration Certificate and subsequ lv/or the p ose of making reasonable inspections to enforce compliance with this Chanter and with building fire electrical plumbing and/or health and safety regulations. In the event an Establishment Registration Certificate has been issued it may be revoked or suspended in the manner hereinafter set forth in this Chanter. person all refuse to permit or Zerfere with, lawful inspection or cQmWiance check of tbt premises by City or County official's. (c) Whenever any City official insp�Cts a massage business and finds that any provision of this Chapter as been violated, he or she shall give notice of such violation by means of an inspection report or other writtgn noticec n t not limited to issuinga citation for each and eve ev=violation this ChapIff or Qther applicaglQ laws, any suchotifica ' n the investigatingperson s all 1 Set forth the s ific violation or violations found and shall notify the Re is ered Certificate Holder that failure to comply with any notice issued in accordance with the provision of s Chapter may roidt in the revocation sWension of the Establishment Registration ertificate. 2 The Reai eed Certificate.Holder may be issued a warningthat any future violation o this Chapter may result in s=en ion or revocation of the Establishment Registration Certificate or the City officials may establish a specific and reasonable period of time for e correction of the violation or violations No time to correct need be given for he lth and safety violations or violation of criminal law Huntington Beach Municipal Code Chapter 5.24 Page 11 of 18 5/19/10 Item 10. - 31 HB -372- (3) The Registered Certificate Holder and operator shall take immediate action to correct violations and the Citv officials may re-inspect the business for compliance. 5.24,075 Transfer of Establishment Registration Certificate. An Establishment Registration Certificate shall not be transferrable between persons or business ommas. The change of business address shall be allowed on an Establishment Registration Certificate,providing that the same persons are listed as the business owner, the new business location complies with all provisions of this Chapter,and the location transfer fee is paid j1pon request f transfer om o business location to another business location. 5 24 080 Establishment Regi tration Certificate Expiration and Renewal. An Establishment Registration_Certification shall be valid for one year, coinciding witli the citv business license effective and expiration dates. s .24.085 Revocation or Suspension of Establishment Registration Certificate—Massage Business. (a) An Establishment Registration Certificate may be suspended or re.oked upon any of the following grounds: /40, 1 ere is r ble cause to believe owner, erato corporation, or partner who ofi e (5) percent or more of the massage business has committed a violation that could have caused denial of the Establishment Registration Certificate (2) There is probable cause to believe a Regi eyed Certificate Holder has made a material misrepresentation on the application for anotstablishment Registration Certificate or renewal. (3) There is probable cause to believe Registered Certificate Holder has engaged in conduct r operated the massage businessio"r as a Massage Practitioner in a manner which violates any of the provisions of this Chapter nv conditions of the Establishment Registration Certificate, or any of the laws which wouldhave been grounds for denial of the Establishment Registration Certificate. (4) The owner or'oerator of a Certified Massage Business employs or uses non-certified massage techru6ans to perform massage services. (5) Violations of this Chapter or of California Business &Professions Code section 4600, et sea have.:occurred on the business premises. lg(6 The Registered Certificate Holder has failed to comply with one or more of the health and safety requirements under this Chapter. y (7) The Registered Certificate Holder has engaged in fraud,misrepresentationr fal. ose statements in obtaining or maintaining an Establishment Registration Certificate (b) No massage establishment shall be established at a location where a massage establishment was closed due to conduct which violated any of the provisions of this Chapter for 1 year. Huntington Beach Municipal Code Chapter 5.24 Page 12 of 18 5/19/10 HB -373- Item 10. - 32 .24,090 Revocation or Suspension Hearing. al Notice of revocation or suspension shall contain a statement of the violation(sl which constitute e basis for suspension or revocation and information about the right to appeal and the necessity of an appeal as a prerequisite to litigation. The Registered Certificate Holder shall have ten(101 calendar days to appeal to the Chief of Police or Designee. (b) A hearing shall be scheduled with the Chief of Police or Designee upon not less than ten(10) calendar days notice to the Registered Certificate Holder. (c) Notice shall be given by personal service or certified or registered mail to the address shown o the last application or renewal. If reasonable attempts to otherwise serve are not successful. service may be provided by first class mail. dl Service shall be deemed complete when personal service is made, when the certified letter is delivered, or when the decision is mailed by first class mail. (e) Unless otherwise specifically prohibited by law, th'/burden of proof is on the Registered Certificate Holder/applicant in any hearing or other matter under this Chapter. Formal rules of evidence shall not apply to the hearing_ (fl _ _ If the Establishment Registration Certificate idsuspended or revoked. the Establishment Registration Certificate shall be surrendered-II r 5.24.095 Anneals from Revocation. Suspension,or Denial of Establishment Registration Certificate. (a) Appeals from any decision of the Chief ifPolice under this Chapter shall be in writing, shall clearly state all applicable basis for the appeal, and shall be filed with the City Clerk not later than fifteen 15) calendar days following the date of notidof the decision. d (b) The City Clerk shall not accept an a4eal. and no hearing shall be held,unless the appellant has paid a filing fee, in an amount set by resolution of the City Council,to defray the cost of such appeal. Any appeal without the timely payment of Lees shall be considered to be untimely. (c) The scope of the appeal hearing p° rsu nt to this section shall be limited to those issues raised by e appellant in the written appeal, as submitted pursuant to subsection(a) of this section. (d) Upon receipt of-a timely filed Leal,the City Clerk shall set the matter for hearing before the City Manager or Designee. The hearing shall be held not fewer than ten(10) calendar days and not more than thirty (30) calendar days from dle date of the appeal request. The hearing may be continued from time to time upon the mutual consent of the parties e The appellant hall be pro 'ided with notice of the time and place of the appeal-hearing, well as a copy of all relevant materials atheast ten(10) calendar days prior to the hearing. 5.24.100 Reapplication After Denial No reapplication for an Establishment Registration Ce_rt_ificate will be accepted within one year after an application or renewal is denied or an Establishment Registration Certificate is revoked,provided that, if an Establishment Registration Certificate is denied Huntington Beach Municipal Code Chapter 5.24 Page 13 of 18 5/19/10 Item 10. - 33 Hs -374- for the sole reason that a massage practitioner does not Dossess a CAMTC certification reapplication may occur after CAMTC certification has been attained 5.24.105 Violation-Penalty. Any person violating this Chanter shall be guilty of a MISDEMEANOR,punishable by a fine of one-thousand dollars ($1,000) or by imprisonment in the county jail for a period not to exceed six(6)months or by both such fine and imprisonment. 5.24,110 Separate Violations. Each violation described in sections 5,24.045, 5.24.050. 5.24.055 and 5.24.060 shall constitute a separate violation and each violation may be charged as a sep_a_rate count in the event of administrative or criminal enforcement action. 5.24.115 Unlawful Operation Declared Nuisance. Any massage establishment operated. nducted or maintained contrary to the provisions of this chapter shall be and the same is hereby declared to b unlawful and a public nuisance. The City Attorney may, in addition to, or in lieu of pros4utin"a criminal action hereunder, commence an action or actions proceeding or proceedings for abatement removal or enjoinment thereof,in the manner provided by law. The City Attorney shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such/relief as shall abate or remove such massage establishment and restrain and enjoin any person from opdrating, conducting—or maintaining a massage establishment contrary to the provisions of this Chapter. 5.24.150 Exemptions. Exemptions do not apply to independde- ef the listed- . #t , (a) Phy-sieians, > .-I --physieal therapists duly (b) Hospitals, nursing ,. homes, sanitafiums, of Galifomia,pfevided that at all finies such ph' ehif > surgeons, gevefn this � (d) Bar-ber-shops and beauty ;� ' ed by the state of California massage above the Re and should�ds anted Wel��te 1n�—�94�e5; , (e) Aeer-edited high seb4s afj4 eelleges, and eeaches and trainefs employed therein while aefing (23951149),� z --r-effe for-patients eflief than patients of the praefifiener-and these patients ,ni�st have been preseribed massage therapy by a pr-ae"enef listed in"s seefien prior-to the e sieal , > ean work, under-the dir-ee4 super-vision of exempted professional as defmed in this seetrien. Dir-eet supen4siea means giat an&xempt Huntington Beach Municipal Code Chapter 5.24 Page 14 of 18 5119110 HB -375_ Item 10. - 34 professional., as deffi-nedd in this seetion, must be pr-eseiit at all times when a student is . ..o;,. 1„+:0.,. (3694 2/05) massage ser-viees for-their-g-aests eit site by a state eeffified massage pr-aetifiener-er-therapist. (3876 5/1-9) r and legible sign adepted by the City > in addifien, at least One affifieiali�j;­- 9/96,3694-2/06) . (3&94 (u) uwi hot and v l.a f ate ..ha4 l.o ,:.-10,-1 „ ■. + -11 (e) Linen ster-age elesed eabinets shall be fevid I.Fed star-age of elean linens, +,,,.1 shall be .;.lo.l f r the ]�„ �:+ f ��;lo l 1; (2395 11179 3267 oro� approved.cc.iv��uvta.. ` , , 3694 2fQ5) (f) &Varatien ef sexes if male and ­ served simuftaneously at massage establis > dressing, toilet f4eilit4es shaN be pr-evided and utilized for-male and female patr-efis. Eaeh separate bathing a with t Health Bed r (a) (1) Eaeh per-seii empleyed r-aefing as a massage therapist or-massage pr-aefifienef shall ba-ve be r ,;,lo l(2) It is unlawful fer- 1 > > manager-of lid-ma +L or-massage pr-aetitioner-eer-tificate issued by the T,r o- The.-a-r -- E '�-�-/89-} n as a to provide I?Rlew awfefie te massage ufliess the massage pfev4deT possesses a- ..1:,1 massa ge-ee rtifieAte issued by the M-assageTherapy Organizixt-i9r. 1" 3467 6E88; (b) Bath and massage oper-atiens shaR be eat:fied en and the premises shall be epen evAy betwe the heers of 7 a.m. and 9 p.m. A massage begun imy time befer-e 9 p.m. ffiiist neveAeless Huntington Beach Municipal Code Chapter 5.24 Page 15 of 18 5/19/10 Item 10. - 35 HB -376- -i - • mwwm � . Y. • Y• • • •• 79 'Ra A . .MIUMPEN • • •• um Mil 0;9 A=ME • • •• • - ■ •. .�. • • _ - n ' .•' NIP I@ WIN mill 0 i MORINO 110 i i -• 1 (n) No paft of-the establishffiepA shall be used for residffitial of sleeping pufpeses. 3267 a.ro5 te .-o , 3844-11 A)9) (e) No penen shall > be, possessien > eons > The responsible > > employee, being pr-'`•-'---for -1„r"----"-- "./ any "____`_ .,_ '--e City ..- _...--` -a"'-_Y_....e__. ( vum-rrrr , , 3944-11 E)9) at a leefffien whieh does not r-egalafly provide erp ge, shall be eendueted in a hotel e pad-8 a. I t Code, t , 32267.9705 39944_41/09) (b) A massage therapist er-fnassage praetition-4 shall be f6fly elethed at all times and shall no their-breasts, and sue rn +' �1, 71 +1c� 11 d tt .7 1, � vat av J J� 1 Ul{Vll 1./1 kV�1V VJ J11A1111V� /���iV'r' 3267_gM5 3844 11 09) view of a pa4r-en of the opposite ?ex, an# s�eb pfac4iees shall tiot be allowed of peffBi4ed b > > e Of Steeldi . —43 93 2. No more 4ian efte male and Ofte 4_­m_A_A]­e may eensent to be massaged in the same treatment room, fie fner-e gidn twe members ef the same sey.may eensent to-he massaged in the same k38444-4 7 fi the ether-pefsen is �rimiirvrr` _en.ez-itigal g izan (8444- x9) (d) A massage therapist or-massage praefifienef sha4l iiet massage,fendle, or-ethefMse h-,we Huntington Beach Municipal Code Chapter 5.24 Page 17 of 18 5/19/10 Item 10. - 37 HB -378- (e) A massage dier-apik ef ffiassage pfaefitioner-shall net give a massage iinless the breasts e shall noteallowed ei�efmitted by anyene. (2395 11179, 3267 995 3844 11 09) of the busi �7 o A A %/ deelared to be unlawful and a publie wtisanee. The City AR 7 7 Cky ARefney sha]4 take sueh athef steps and shall apply te sueh eetu4 or-eeuAs j J d ' : I'eiisieRTVL this S�fTCGT— , 5.24.341 SeverabilIf any section subsection phrase or clause of this if� section is for any reason held to be invalid, such decision shall not affect the validity of the remainingportion of this section. The City Council declares that it would have adopted this ordinance and each section, subsection,phrase or clause thereof irrespective of the fact that any one or more sections, subsections, sentences,phrases or clauses be declared invalid. t A� J° d Air r Huntington Beach Municipal Code Chapter 5.24 Page 18 of 18 5119/10 HB -379- Item 10. - 38 LATE COMMUNICATION CITY OF HUNTINGTON BEACH Interdepartmental Communication TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: JENNIFER McGRATH, City Attorney DATE: March 14, 2013 SUBJECT: AMENDMENTS TO MASSAGE ESTABLISHMENTS ORDINANCE Staff has been working with the California Massage Therapy Council, CAMTC, regarding concerns raised with proposed amendments to the Massage Establishment Ordinance. Based upon the progress made, it is requested the second reading of the Ordinance be taken off the March 18, 2013 Agenda and be placed on the Agenda for the first meeting in April instead. This request is being made so that our office may do additional work on this item. IJE u for your courtesy and coo tion in this matter. IFER McGRATH City Attorney cc: Fred Wilson, City Manager Joan Flynn, City Clerk Ken Small, Police Chief SUPPLEMENTAL COMMUNICATION Meeting Ct9: L/,L / Agenda item No.,O _.. ___...... Late Communication re Amendments to Massage.doc Dept.ID PD-13-002 Page 1 of 2 Meeting Date:3/4/2013 V,04,0vrm /,uModcusn0^16 (�ni�dit ��rr CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 3/4/2013 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Kenneth W. Small, Chief of Police SUBJECT: Approve for introduction Ordinance No. 3973 amending Chapter 5.24 of the Huntington Beach Municipal Code (HBMC). The proposed amendment augments current state law and enhances the City's ability to regulate massage businesses operating in Huntington Beach. Statement of Issue: Transmitted for your consideration is a proposal to amend Chapter 5.24 of the Huntington Beach Municipal Code. The proposed amendment augments current state law and enhances the City's.ability to regulate massage businesses operating in Huntington Beach. Financial Impact: Not applicable. Recommended Action: Approve for introduction Ordinance No. 3973, "An Ordinance of the City of Huntington Beach Amending Chapter 5.24 of the Huntington Beach Municipal Code Relating to Massage Establishments." Alternative Action(s): Deny the recommended amendment to Municipal Code Chapter 5.24 retaining the current law as written. Analysis: In November, 2009, the City Council approved regulatory changes with regard to massage establishments to comply with newly enacted state law resulting in California Business and Professions Codes 4600, et seq. These laws significantly reduced local governments' regulatory authority in licensing, permitting, and land use by the formation of a State operated, non- profit agency with legislative oversight called the California Massage Therapy Council (CAMTC). Most of the licensing and monitoring responsibilities were transferred from the City to the State with the goal of achieving consistency in the application of rules and regulations with respect to businesses and individuals involved in the massage therapy field. The changes approved by the City Council included modifications to the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) and Municipal Code Chapter 5.24 to bring the City's regulations into compliance with State law. Since the State law went into effect there has been a substantial increase in the number of massage establishments in Huntington Beach. The number of establishments has increased from nine (9) to approximately sixty-five (65). Based on information available to the police department, illicit sexual activity in massage establishments located in Huntington Beach has also increased substantially. The proposed amendment to the ordinance is an attempt to strengthen the local oversight of these establishments because oversight of the Huntington Beach locations by the CAMTC appears to be both inadequate and ineffective. '`,;\' Item 12. - I xB -152- -----` Dept.ID PD-13-002 Page 2 of 2 Meeting Date:3/4/2013 The Police, Planning and Finance Departments worked with the City Attorney's Office to draft a proposal to provide for the legitimate regulation of massage businesses and practitioners to the extent allowable under the state law. Per Business and Professions Code section 4612(b)(4), local governments do have the legal authority to impose requirements and regulate massage businesses and practitioners in the same manner as other professional service businesses. The proposed ordinance borrows from other cities in California which are facing similar issues and attempts to regulate without being onerous. The proposed ordinance requires the certification of businesses and individuals engaged in massage therapy in the city. Some of the provisions of the proposed ordinance include, but are not limited to: 1) Specific instructions on how certification is obtained including what information needs to be provided to the City when applying for certification. 2) Certified Massage Businesses shall employ only Certified Massage Practitioners who have met the requirements of the CAMTC. 3) If an applicant owner, operator, corporation or partner owns 5% or more of the massage business and is not state certified, the City shall conduct a background check of that owner, operator, corporation or partner. 4) Certification may be denied if the background check for any applicant/owner reveals convictions of certain crimes including those requiring one to register under the provisions of Section 290 of the California Penal Code. 5) The mechanism for appealing the denial of certification. 6) The owner/applicant shall sign a statement indicating they are responsible for the conduct of all employees or independent contractors working on the premises and acknowledging that failure to comply with the California Business and Professions Code section 4600, et seq. with any local, state or federal law, or with the provisions of the chapter may result in the suspension or revocation of the City's Registration Certificate. 7) Additional provisions detailing when a Registration Certificate issued to a Certified Massage Business or Individual may be suspended or revoked. 8) The hearing process to appeal a suspension or revocation hearing. 9) A massage business Registration Certificate shall not be transferable except with the written approval of the City. 10)No massage establishment shall be established at a location where a massage establishment was closed due to conduct which violated any provisions of Chapter 5.24 of the H.B.M.C., for a period of one year following such closure. 11)Violation of any provisions of this chapter shall be deemed a misdemeanor unless reduced to an infraction by the City Attorney's Office. Upon adoption of the amended ordinance, all existing and new massage business owners conducting business or desiring to practice in the City of Huntington Beach will have to apply for registration certification. The registration shall be valid for one year, coinciding with the city business license effective and expiration dates. Environmental Status: N/A Strategic Plan Goal: Maintain Public Safety Attachment(s): 1. Ordinance No. 3973, "An Ordinance of the City of Huntington Beach Amending Chapter 5.24 of the Huntington Beach Municipal Code Relating to Massage Establishments." 2. Legislative Draft of Huntington Beach Municipal Code Chapter 5.24. xB -153- Item 12. - 2 ATTACHMENT # 1 Item 12. - 3 HBi.4 ORDINANCE NO. 3973 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 5.24.010 of the Huntington Beach Municipal Code is hereby amended to read as follows: /,Wntext 5.24.010 Definitions. Unless the particular provision or the otherwise requires, the definitions and provisions contained in this section shall govern the construction, 41 meaning, and application of words and phrases used in t is Chapter. (a) "Applicant" means an applicant for an Establis ent Registration Certificate. (b) "California Massage Therapy Council" or"C. MTC" means the State nonprofit organization created to regulate and issue dssage practitioner and therapist certificates pursuant to California Busines and Professions Code Section 4600, et seq. (c) "Certified" shall mean any valid certificate issued in accordance with Sections 2600 through 4620 of the California Business and Professions Code. (d) "Certified Massage Business"means any business that possesses a valid city business license and an Establishment Registration Certificate, and where the only persons employed or used by that business to provide massage services have current and valid State Certifications. (e) "Certified Massage Practitioner" means any person holding a current and valid State Certificate issued by th�California Massage Therapy Council pursuant to California Business and Professl ns Code Section 4600 et seq.,whether as a massage practitioner or massage therapist, as defined therein. (f) "Certified Sole Pp3prietorship" means any massage business where the owner is the only person employed or used by that business to provide massage services and the owner has a current and valid State Certification and an Establishment Registration Certificate. f (g) "City" means the City of Huntington Beach. (h) "Chief Police or Designee" shall mean the person or persons designated to administer the provisions of this Chapter. (i) "Compensation" shall mean the payment, loan, advance, donation, contribution, deposit, or gift of money or anything of value. N, <t a 13-3638/91838 1 Ordinance No. 3973 "Employee"means an person, other than a massage ractitioner, manager or owner �) YP � g P � g or operator, who renders any service, with or without compensation,to the owner or operator of a massage establishment relating to the day-to-day operation of the massage establishment whether as an employee or independent contractor. (k) "Establishment Registration Certificate—Business" or"Business Registration Certificate"means a certification issued by the Chief of Police upon submission of satisfactory evidence as required that a massage business or sole proprietorship`s employs or uses only certified massage therapists or practitioners possessing valid and current State Certifications and has satisfied all other requirements pursuant to the provisions of this Chapter. (1) For purposes of this Chapter, the terms "massage" and"bodywork's shall have the same meaning. (m)"Massage", "massage therapy", or"bodywork" means any methoPd of pressure on, or friction against or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus or appliance, or with or without supplementary aids such as rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment, or other similar preparations commonly used in this practice. (n) "Massage establishment" means any establishment h/Ving a fixed place of business where any individual, firm, association,partnership corporation, or combination of individuals, engages in, conducts, carries on or pe11rmits to be engaged in, conducted or carried on,massages, baths, or health treatments involving massage or baths. (o) "Massage therapist,""bodyworker,""bodywotherapist,"or"massage and bodywork therapist"means a person who is certified by the California Massage Therapy Council under Subdivision(c) ofection 4601 of the California Business and Professions Code, and who administers massage for compensation. (p) "Massage practitioner," "bodywork pr rctitioner," or"massage and bodywork practitioner"means a person who is ertified by the California Massage Therapy Council under Subdivision(b) of Section 4601 of the California Business and Professionals Code, and who administers massage for compensation. (q) "Operator" means the individ who manages the massage establishment. Evidence of management includes but inot limited to evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules or purchase supplies. ° operator may also be an owner. (r) "Organization"means th/ California Massage Therapy Council created pursuant to Sections 4600-4620 of he California Business and Professions Code. (s) "Owner"means the�ndftividual(s)whose name appears on the City of Huntington Beach business license. (t) "Registered Certificate Holder"means a business that has been issued an Establishment egistration Certificate by the City's Chief of Police. (u) "State Certifi ation" or"State Certificate"means a valid and current certification properly issued by the CAMTC pursuant to California Business and Professions Code Section 4600, et seq. `*�,� ��� ,. ,` , q 13-3638/91838 2 T `: Ordinance No. 3973 z� SECTION 2. Section 5.24.015 of the Huntington Beach Municipal Code is,hereby added to read as follows: ' 5.24.015 Authority. The Chief of Police or Designee shall have the power and authority to promulgate rules, regulations, and requirements consistent with the provisions of this Chapter and other law in connection with the issuance of an Establishment Registration Certificate. The Chief of Police or Designee shall have authority to make decisions, investigate and take action under this Chapter. as SECTION 3. Section 5.24.020 of the Huntington Beach Municipal Code is hereby amended to read as follows: � 5.24.020 Massage Certification/Establishment Registration Certificate Required. It shall be unlawful for any person,association,partnership,corporation°'or other entity to engage in,conduct or carry on,permit to engage in, in or upon any premises within the City of Huntington Beach the business of providing massages in exchange for compensation without being currently certified as a massage practitioner or massage therapist by the California Massage Therapy Council in accordance with Sections 4600 through 4620 of the California Business and Professions Code and be a Certified Massage Business as described in 5.24.010(d)herein. SECTION 4. Section 5.24.025 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.025 Application for EstablishmentfRegistration Certificate. r` (a) An application for an Establishment Registration Certificate shall be filed on forms provided by the City, submitted under penalty`of perjury, and shall include the following information: (1) The full,true name under which the business will be conducted. (2) The full true name of the applicant. (3) A complete statement listing and explaining any and all aliases and fictitious names used by the applicant within the last ten (10) years. (4) The present or proposed business address where the business is to be conducted. (5) A complete description of all services to be provided at the proposed massage establishment (6) Business Entity Type. (7) Tax ID number used for the income tax reporting for the business applying for. (8) The residence address of the applicant. (9) Date of Birth. (10) Social Security Number. (11) A valid and current driver's license and/or identification card issued by a state or federal government agency or other photographic identification bearing a bona fide seal by a foreign government. (12) (The original valid and current State Certificate issued by CAMTC. If establishment owner is not State certified, a valid State Certificate must be provided for an employee or independent contractor. rr� 13-3638/91838 3 X'i+ Ordinance No. 3973 (13) The original valid and current ID Card issued by CAMTC. If establishment owner is not State certified, a valid ID Card must be provided for an employee or independent contractor. (14) The name and address of any massage business or other like business owned or operated by any person whose name is required to be given pursuant,-to this section for the ten(10) years immediately preceding the filing of the application. (15) A description of any other business to be operated on the same,&emises, or on adjoining premises, owned or controlled by the applicant. (16) The name and address of the owner and lessor of the real property, if any,upon or within which the business is to be conducted, including the mailing address lessee submits lease or rental payments to. r (17) A copy of the current lease agreement with lessor ofthe real property which will include property owner personal name, business name, if applicable, complete valid mailing address, and phone number. (18) A signed statement authorizing the City, its officers, agents and employees, to seek information and conduct an investigation intdthe truth of the statements set forth in the application and to ensure continual compliance with all applicable provisions of law. (19) A signed statement that the business owner shall employ only State Certified Massage Practitioners or Therapists to provide.>nassage services. (20) A signed statement that all persons,on establishment premises will be State Certified Massage Practitioners or Therapists whether a business employee or independent contractor. (21) A signed statement that all independent massage practitioners on the establishment premises will be in possession of a valid current city business license. (22) Completed Fingerprinting,,and background check for any business owner or operator applying for an Establishment Registration Certificate who is not otherwise certified by CAMTC. (23) Payment of an Establishment Registration Certificate fee set by council resolution. (b) An Applicant who is a business owner, operator or sole proprietor and who is not CAMTC certified,must submit current background and fingerprint information to determine whether the Applicant has any of the following: (1) All convicti ns for any crime involving conduct which requires registration under California/Penal Code Section 290 (Sex Offender Registration Act). (2) Convictions for violations of California Penal Code Section 266i (pandering), 315 (keeping or residing in house of ill-fame), 316 (keeping disorderly house), 318 (prevailing upon person to visit place for gambling or prostitution), 647(b) (prostitution); 653.23 (supervision of a prostitute); 415 (disturbing the peace). (3) Convictions of any felony offense involving the sale of a controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code. (4) Convictions of crimes designated in Government Code Section 51032, or any crime involving dishonesty, fraud, deceit, violence or moral turpitude. (5) All injunctions for nuisances under Penal Code Section 11225-11235. 13-3638/91838 4 �� �� �.� Y\ .t / t1 Ordinance No. 3973 (6) Convictions in any other state of any offense which, if committed or attempted in this state,would have been punishable as one or more of the referenced offense of this subpart. (7) Conspiracy or attempt to commit any such offense described in subsections (1)-(6) of this subpart. (c) The applicant, corporation or partnership shall designate one of its. fficers or general partners to act as its responsible managing officer/employee. Such person shall complete and sign all application forms required of an individual applicant under' Chapter. The corporation's or partnership's responsible managing officer mustat all times meet all of the requirements set by this Chapter or the corporation's or partne5,s'hip's Establishment Registration Certificate shall be suspended until a responsible managing officer who meets such requirements is designated. If no such person is designated within ninetyy90) days,the corporation's or partnership's Establishment Registration Certificate is deemed canceled and a new application for registration must be filed. (d) A signed statement that the owner/applicant shall be responsible for the conduct of all employees or independent contractors working onithe premises of the business and acknowledging that failure to comply,with Cali£rnia Business &Professions Code section 4600, et seq. with any local, state or federal law, or with the provisions of this Chapter may result in the revocation of the Establishment RegistratiowCertificate. (e) Zoning consistency check in writin/from the City's Planning and Building Department. A zoning consistency check does not confer or authorize any entitlement to a use permit or building permit or similar, which process, if applicable, is separate from the Establishment Registration Certificate process. (f) Payment of a nonrefundable registration fee in an amount established by resolution of the City Council. (g) Upon receipt of the co, pleted application, the Chief of Police or Designee shall refer the application to other City departments that shall inspect the premises, if any,proposed to be used as a massage business and shall make a written recommendation to the Chief of Police or Designee concerning ompliance with the respective requirements. (h) The Chief of olice or Designee shall have up to sixty (60) Calendar days after the submission of al required information to complete an investigation. SECT ON 5. Section 5.24.030 of the Huntington Beach Municipal Code is hereby amended to ead as follows: 5.24.030 assa a establishment or services—Business License Re aired. (a) Any person, association, corporation,partnership or other entity desiring to operate a massage establishment or provide massage services shall obtain a business license and provide the following relevant information: h 13-3638/91838 5 r L' tiil L-. .�k`� Ordinance No. 3973 (1) Full name of certificate holder(if applicable). (2) Date of Birth. (3) State issued identification number(if applicable). (4) Social Security Numbers (5) Home address and phone number. (6) Work address and phone number. (7) Color photograph of the certificate holder. (8) Proof of State certification for those who will provide massaservices. (b) Prior to submitting the massage business license application, the/fees as established by resolution of the City Council shall be paid to the City of Huntington Beach. (c) The application for the massage business license does nou uthorize operation of a massage establishment or performing massage services until the business license is issued. (d) It shall be the responsibility of each massage business owner or operator to file copies or provide other evidence of the certificates held by the persons who are providing massage services at the business. , (e) It shall be the responsibility of each massage$usiness owner or operator to notify the City of any intention to rename, change managementor convey the business to another person. SECTION 6. Section 5.24.035 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.035 Approval or denial of Estalblislament Registration Certificate. (a) An Establishment Registratiolcertificate shall be issued by the Chief of Police or Designee to any Certified Sole Proprietor p that demonstrates all of the following: 1. The operation, as proposed by the applicant, if permitted, would comply with all applicable laws, including, but not limited to, the City's building, zoning, business license, and health4regulations and all requirements listed in this Chapter; 2. The owner is the only person employed or used by that business to provide massage services; Z 3. The owner holds a valid and current State Certificate issued pursuant to Chapter 10.5 of the Californi Business& Professions Code and that the owner/applicant is the same sli person tohom the CAMTC issued a valid and current State Certificate and identification card; 4. The applicant possesses a valid business license issued pursuant to the Huntington Beach Muni ipal Code; and 5. Th applicant has not failed to provide information, assurances, or documentation re uired by this Chapter, has not failed to reveal any fact material to qualification, or has of supplied information that is untrue or misleading as to a material fact pertaining to the qualification criteria. a y � ti 0. 13-3638/91838 6 it`4 Ordinance No. 3973 (b) An Establishment Registration Certificate shall be issued by the Chief of Police or Designee to any Certified Massage Business that demonstrates all of the following: 1. The operation, as proposed by the applicant, if permitted, would comply with all applicable laws, including, but not limited to, the City's building, zoning, business license, and health regulations and all requirements listed in this Chapter; 2. The massage business employs or uses only Massage Practitioners with CAM>'C State Certificates whose certifications are valid and current and that owners of tI State Certificates are the same persons to whom CAMTC issued valid andZion ent identification cards; and 3. The applicant has provided all information, assurances, or document required by this chapter,has not failed to reveal any fact material to qualification, nd has not supplied information that is untrue or misleading as to a material fact pe wining to the qualification criteria. yr (c) The background check for any applicant/owner authorizedy this Chapter shows that such person has not been required to register under the provisiods of Section 290 of the California Penal Code; there exists no probable cause to believte a violation of the crimes indicated in section 5.24.025(b)herein or California Penal de Section 415; has not had an individual or business permit or license with any agency0oard, city, county, territory, or state, denied, revoked, restricted, or suspended within the las five (5)years; and has not been subject to an injunction for nuisance under Penal Code Sectior11225-11235 within the last five (5) years. y (d) The Chief of Police or Designee may defy issuance of an Establishment Registration Certificate for non-compliance with any of the above described requirements. SECTION 7. Section 5.24.040 of the Huntington Beach Municipal Code is hereby added to read as follows: y 5.24.040 Exemptions. Exemptions do'not apply to independent contractors of the listed exempted professionals. The provisions of this Chapter shall not apply to the following classes of individuals or groups while engaged in or performing the duties of their respective professions: y (a) Physicians, surgeons, chiropractors, osteopaths, acupuncturists,and physical therapists duly licensed to practice in the State of California. f (b) Hospitals,nursinWhomes, 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. (c) Registered or licensed vocational nurses duly registered by the State of California. d Barb/rshops and beaut parlors, barbers and beauticians but only when engaged in the ( ) Y 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. , _t 13-3638/91838 7 1 �( �� •�:> ��� � Ordinance No. 3973 (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:s (g) No employed or independent contractor massage technician may administer as age or otherwise treat or care for patients other than patients of the practitioner and those/1 ents 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. (i) Owners of stand alone hotels with more than 1 OQ4o'n-site rooms for rent and which provide massage services for their guests on site by astate certified massage practitioner or therapist. SECTION 8. Section 5.24.045 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.25.045 Health & Safety ReguirementsAll premises of a Certified Massage Business shall be subject to periodic inspection by the City for compliance with health, safety, and building standards and all such establishments shall comply with 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 as all times while a patron is in such room or enclosure. (c) Equipment- adequate equipment acceptable to the Orange County Health Department for disinfecting and sterilizing rilizing instruments used in performing the acts of massage shall be provided. (d) Water-hot'�and cold running water shall be provided at all times. (e) Linen/torage - closed cabinets shall be provided and utilized for storage of clean linens, and approved-receptacles acceptable to the Orange County Health Department shall be provided for the deposit of soiled linen. `ice Jf �f e l 13-3638/91838 8 Ordinance No. 3973 (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 and utilized for male and female patrons. Each separate facility or room shall be clearly marked as such. °F (g)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 the Orange County Health Department. { SECTION 9. Section 5.24.050 of the Huntington Beach Municipal Code is�hereby added to read as follows: '* 5.24.050 Massage establishment operation. Every massage establishments all comply with the following operating requirements: , (a) (1) Each person employed or acting as a massage therapidi or massage practitioner shall have a valid certificate issued by the California Massage Therapy Council, a clearly legible copy of which shall be conspicuously posted in public view and be visible from the entrance and/or reception ands vaiting area. (2) It is unlawful for the owner, operator, responsible managing employee, manager or certificate holder in charge of or in control of the massage establishment to employ or permit a person to act as aAassage therapist or massage practitioner who does not possess a valid massage therapist or massage practitioner certificate issued by the California Massa/Therapy Council. (3) No business, except those ex mpted under section 5.24.040 herein,may employ anyone to provide massage4or allow anyone to massage unless the massage provider possesses a valid massage certificate issued by the California Massage Therapy Council. (b) Bath and massage operations s/alle 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 perso ;`whether certified or not, may provide massage after 9:00 p.m. (c)A list of services shall e 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 certificate/holder shall permit, and no massage therapist or massage practitioner shall offer to perform any services other than those posted. (d) Any mass e establishment or business shall maintain on its premises evidence for review by local autho : ie rns that demonstrates that all persons providing massage services are certified by the Califoia Massage Therapy Council. ;L \y.i 13-3638/91838 9 Ordinance No. 3973 (e)Each massage therapist and massage practitioner shall wear the California Massage Therapy Council issued identification(or copy of) as their name tag on the outer clothing and the name tag shall be clearly visible at all times while on the premise. The massage therapist and massage practitioner shall not use any name other than specified on their certificate while on duty. , ' �. (f) Massage therapists and massage practitioners shall be fully clothed at all times. Clothing sh"all be of a fully opaque, non-transparent material and provide the complete covering from i,.=thigh to three (3) inches below the collar bone. (g)Areas where massages are to be performed shall be separated by a non-lockable door unless there is no staff available to assure security for clients and massage staff who ire behind closed doors. Said door shall not be equipped with a"peep hole" or any other device' at 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 un'less they have first been laundered and disinfected. Disposable towels and coverings shall not be used on more than one (1)patron. (i) Wet and dry heat rooms, steam or vapor rooms or cabinyts, 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 appr"oved by the Orange County 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. gU (j) Instruments utilized in performing massage shall not be used on more than one (1)patron unless they have been sterilized using appr.6ved sterilizing methods. (k) Where a covering is furnished by tl'e 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 therapists,massage practitioners and employees of the massage establishment, and the name and residence addresses of the manager or managing employee pure forted to be principally in charge of the operation of the massage establishment. This rost shall be kept at the premises and be available for inspection by officials charged with enforcement of this Chapter. ((in) Every massage ��tablishment 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 or massage practitioner administering treatment, and the type of treatment administered,to be recorded on aajpatron release form. Such written record shall be open to inspection by officials charged wit i enforcement of this chapter. Such records shall be kept on the premises of the massage establishment for a period of two (2) years. (n)No part of the establishment shall be used for residential or sleeping purposes. 13-3638/91838 10 Ordinance No. 3973 (o)No person shall enter, be, or remain in any part of a massage establishment while in the fi 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. (p) 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. (q)All doors leading into a massage establishment or area where massages ad being performed shall remain unlocked during business hours unless there is no staff avail4ble to assure security for clients and massage staff who are behind closed doors. ( )No massage e establishment shall simultaneously operate as a school of massage, or share facilities with a school of massage. (s) The Owner shall have a continuing obligation to notify the Chief of Police in writing of any changes in massage practitioners and owners, operators or staff within seven(7) calendar days of such change. (t)Every massage business owner or operator shall report in writing immediately to the Chief of Police any and all changes of address or ownership�of the massage business. SECTION 10. Section 5.24.055 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.055 Outcall Massa es. No outcall massa e which is a massage in a private residence or at g �' g , g a location which does not regularly provide or permit massage, shall be conducted in a hotel or motel room, or in the private residende of the Certified Massage Practitioner. No outcall massage may be provided in a pri to residence or business not regularly providing massage services between 7 p.m. and 8 a.m. SECTION 11. Sectio�'n 5.24.060 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.060 Massage Estab6ishment-Prohibited Conduct: (a) No alcoholiclieverages shall be sold, served, or furnished on the premises of any massage establishment without a valid alcoholic beverage license from the State and conditional use permit from the City. (b) During the hours of operation, visitors shall not be permitted in massage therapy rooms except as follows: (1)the parents or guardian of a patron who is a minor child may be present in the mass ge therapy room with that minor child; (2)the minor child of a patron may,be present in the r f assage therapy room with the patron when necessary for the supervision of the child; or (3)tle 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. 13-3638/91838 Ordinance No. 3973 (c) No operator shall hire, employ or allow a person to perform massage services unless such person possesses a valid CAMTC Certificate. Each Operator of a massage establishment shall �` verify that all persons hold the appropriate State Certificate required by this Chapter. ° (d) No electrical, mechanical or artificial device shall be used by any massage establishment staff for audio and/or video recording or for monitoring the performance of a massage,of the conversation of other sounds in the massage rooms, without the knowledge and written consent of the patron. J (e) A massage therapist or massage practitioner shall not violate the pro'i ions of Sections 647(a) and (b) of the California Penal Code, or any other state law, iinvolving a crime of moral turpitude, and such practices shall not be allowed or permitted by anyone. (f) A massage therapist Practitioner shall be fully clothed at all times and P or massage g shall not expose their genitals,pubic area, buttocks, or in the case of female therapists or practitioners,their breasts, and such practices shall not be allowed or permitted by anyone. 0 (g) A massage therapist or massage practitioner shall,ri t massage a patron of one sex within the view of a patron of the opposite sex, and such practices shall not be allowed or permitted by anyone unless all parties expressly consent to the tr�'ent, location, and presence of the opposite sex. y� (1) This subsection shall not apply if a 1 involved patrons are fully clothed, excluding socks or stockings. 1 ,y 6 (2) No more than one male andone female may consent to be massaged in the same treatment room, and no more than two in of the same sex may consent to be massaged in the same treatment room. {' (3) No person under theage of 18 may consent to a massage in the presence of another unless the other person is,Ahe minor's parent or legal guardian. (h) A massage therapist ojAmassage practitioner shall not massage, fondle, or otherwise have intentional contact with tegenitals or anus of any patron, or the breasts of a female patron and such practices shall not be alled CP or permitted by anyone. 1 A massage therapist or massage practitioner shall not give a massage unless the breasts of () g VP g P g g female patrons are covered and the genitals of all patrons are covered,and such practices shall not be allowed or permitted'by anyone. a SECTION 12. Section 5.24.065 of the Huntington Beach Municipal Code is hereby added to readi as follows: 5.24.065 Responsibility. The owner or operator of a massage business or establishment shall be responsible for the conduct of all employees or independent contractors working on the premises of the business. - 13-3638/91838 12 `t. /'• Ordinance No. 3973 SECTION 13. Section 5.24.070 of the Huntington Beach Municipal Code is hereby added to read as follows: ? 7� 5, 5.24.070 Inspection by City officials and notices of violation. (a) The investigating officials of the City, as designated by the Chief of Police, include, but are not limited to, representatives of the City's Police Department, Finance Department, Fire Department, Planning and Building Department and the County Health Officer, shall have the right to enter the premises from time to time during regular business-4hours prior to the issuance of an Establishment Registration Certificate and subsequentlsy for the purpose of making reasonable inspections to enforce compliance with this Chapter and with building, fire, electrical, plumbing, and/or health and safety regulations. InAe event an Establishment Registration Certificate has been issued, it may e revoked or suspended in the manner hereinafter set forth in this Chapter. (b) No person shall refuse to permit, cause delay of, or interf e with, a lawful inspection or compliance check of the premises by City or County officials at any time. , (c) Whenever any City official inspects a massage business and finds that any provision of this Chapter has been violated, he or she shall give notice of such violation by means of an inspection report or other written notice including but not limited to issuing a citation for each and every violation of this Chapter or other applicable laws. In any such notification, the investigating person shall: �� (1) Set forth the specific violation or violations found, and shall notify the Registered Certificate Holder that failure to comply with any notice issued in accordance with the provisions of this Chapter may result in the revocation or suspension of the Establishment Registration Certificate. (2) The Registered Cert ficate Holder may be issued a warning that any future violation of this!Chapter may result in suspension or revocation of the EstablishmentRegistration Certificate or the City officials may establish a specific and/reasonable period of time for the correction of the violation or violationsf No time to correct need be given for health and safety violations or violation of criminal law. �r (3) The,Registered Certificate Holder and operator shall take immediate action to co4ect violations and the City officials may re-inspect the business for compliance. SECTION 14. Section 5.24.075 of the Huntington Beach Municipal Code is hereby added to read as follows: 13-3638/91838 13 Ordinance No. 3973 5.24.075 Transfer of Establishment Registration Certificate. An Establishment Registration Certificate shall not be transferrable between persons or business owners. The change of business address shall be allowed on an Establishment Registration Certificate,providing that the same persons are listed as the business owner, the new business location complies with all provisions of this Chapter, and the location transfer fee"is paid upon request of transfer from one business location to another business location. x SECTION 15. Section 5.24.080 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.080 Establishment Registration Certificate Expiration and"Renewal. An Establishment Registration Certification shall be valid for one year, coinciding with the city business license effective and expiration dates. ` Y SECTION 16. Section 5.24.085 of the Huntington Beach Municipal Code is hereby added to read as follows: /W, 5.24.085 Revocation or Suspension of Establishment Registration Certificate—Massage Business. ; (a) An Establishment Registration Certif Cate may be suspended or revoked upon any of the following grounds: f�. (1) There is probable cause to believe an owner, operator, corporation, or partner who owns five (5)percent or more`of the massage business has committed a violation that could have caused denial of i'he Establishment Registration Certificate. g.; (2) There is probable cause to believe a Registered Certificate Holder has made a material misrepresentation on the application for an Establishment Registration Certificate or renewal. (3) There is probable cause to believe the Registered Certificate Holder has engaged in conduct or operated the massage business or as a Massage Practitioner in a manner which violates any of the provisions of this Chapter, any conditions of the Establishment Registration,/Certificate, or any of the laws which would have been grounds for denial of the Establishment Registration Certificate. (4) The owner or operator of a Certified Massage Business employs or uses non-certified massage technicians to perform massage services. (5) Violations of this Chapter or of California Business &Professions Code section (4600, et seq. have occurred on the business premises. 13-3638/91838 14 Ordinance No. 3973 (6) The Registered Certificate Holder has failed to comply with one or more of the health and safety requirements under this Chapter. (7) The Registered Certificate Holder has engaged in fraud, misrepresentation, or false r= statements in obtaining or maintaining an Establishment Registration Certificate. (b) No massage establishment shall be established at a location where a massage ''' establishment was closed due to conduct which violated any of the provisions=of this Chapter for 1 year. ,r SECTION 17. Section 5.24.090 of the Huntington Beach Municipalo'Code is hereby added to read as follows: 5.24.090 Revocation or Suspension Hearing. b. (a) Notice of revocation or suspension shall contain a statement of the violation(s)which constitute the basis for suspension or revocation and inf rmation about the right to appeal and the necessity of an appeal as a prerequisite to litigation. The Registered Certificate Holder shall have ten(10) calendar days to appeal;µto the Chief of Police of Designee. (b) A hearing shall be scheduled with the Chief ofePolice or Designee upon not less than ten (10) calendar days notice to the Registered Certificate Holder. (c) Notice shall be given by personal service or certified or registered mail to the address shown on the last application or renewal. If reasonable attempts to otherwise serve are not successful, service may be provided by first class mail. (d) Service shall be deemed complet6 when personal service is made, when the certified letter is delivered, or when theMecision is mailed by first class mail. (e) Unless otherwise specifically prohibited by law,the burden of proof is on the Registered Certificate Holder/applicant in any hearing or other matter under this Chapter. Formal rules of evidence shall�not apply to the hearing. (f) If the EstablishmeneRegistration Certificate is suspended or revoked, the Establishment Registration Certificate shall be surrendered. SECTON 18.f Section 5.24.095 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.095 Appezls from Revocation, Suspension or Denial of Establishment Registration Certificate. (a) Ap eals from any decision of the Chief of Police under this Chapter shall be in writing, shall clearly state all applicable basis for the appeal, and shall be filed with the City Clerk not later than fifteen(15) calendar days following the date of notice of the,decision. 13-3638/91838 15 ` Ordinance No. 3973 (b) The City Clerk shall not accept an appeal, and no hearing shall be held, unless the ,: appellant has paid a filing fee, in an amount set by resolution of the City Council, to defray the"� cost of such appeal. Any appeal without the timely payment of fees shall be considered to be untimely. (c) The scope of the appeal hearing pursuant to this section shall be limited to those issues raised by the appellant in the written appeal, as submitted pursuant to subsection$(a) of this section. (d) Upon receipt of a timely filed appeal, the City Clerk shall set the m tter for hearing before the City Manager or Designee. The hearing shall be held not fewer than ten (10) calendar days and not more than thirty(30) calendar days from the date of the appeal request. The hearing may be continued from time to time upon the mutual consent of the parties. R�. (e) The appellant shall be provided with notice of the time and place of the appeal hearing, as well as a copy of all relevant materials at least ten (10) calendar days prior to the hearing. 10 SECTION 19. Section 5.24.100 of the Huntington Beach Municipal Code is hereby added to read as follows: , 5.24.100 Reapplication After Denial. No reapplication for an Establishment Registration Certificate will be accepted within one year afteraan application or renewal is denied or an Establishment Registration Certificate is revoked, provided that, if an Establishment Registration Certificate is denied for the sole reason that,a`massage practitioner does not possess a CAMTC certification,reapplication may occur after.'CAMTC certification has been attained. SECTION 20. Section 5.24.105 of the Huntington Beach Municipal Code is hereby added to read as follows: 5.24.105 Violation—Penalty. {Any person violating this Chapter shall be guilty of a MISDEMEANOR, punishablefiy a fine of one-thousand dollars ($1,000) or by imprisonment in the county jail for a period not to exceed six (6) months, or by both such fine and imprisonment. SECTION 21. Section 5.24.110 of the Huntington Beach Municipal Code is hereby added to read as follows! 5.24.110 Separate Violations. Each violation described in sections 5.24.045, 5.24.050, 5.24.055 and 5.24.060 shall;'constitute a separate violation and each violation may be charged as a separate count in the event of administrative or criminal enforcement action. ,r SECTION 22. Section 5.24.115 of the Huntington Beach Municipal Code is hereby added to read as follows: I i 13-3638/91838 16 Ordinance No. 3973 5.24.115 Unlawful Operation Declared Nuisance. 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. 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 abatement, removal or enjoinment thereof, in the manner provided by=law. The City Attorney shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as shall abate or remove such massage establishment and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary to the provisions of this Chapter. SECTION 23. Sections 5.24.160 5.24.170 5.24.225 5.24.230 '5.24.235 5.24.240 and 5.24.340 shall be deleted in their entirety. SECTION 24. This ordinance shall become effective 30.days after its adoption. PASSED AND ADOPTED by the City Council of thF City of Huntington Beach at a regular meeting thereof held on the day of 52013. Mayor ATTEST: 'APPROVED AS TO FORM: City Clerk City Attorney REVND APPROVED: INITIATED AND APPROVED: � N� coP Lity Manager Chief 6YVolice 13-3638/91838 17 A TTA0 Ha a E N I' 2 Chapter 5.24 MASSAGE ESTABLISHMENTS (1213-6/66,1293-3/67,2007-10/75,2187-6/77,Urg.2361-3/79,Urg.2394-8/79,2466-2181,2726-10/84,3173-10/92,32 7-9/95, 3467-6100,3694-2105,3716-7/05,3738-7/06,3844-11/09,3876-5/10) Sections: 5.24.010 Definitions 5,24,015 Authority 5.24.020 Massage e-Certification/Establishment Registration Certificate rR quired 5.24.025 Application for Establishment Registration Certificate 5.24.030 Massage establishment or services—Business License rRequir d 24.035 Approval or denial of Establishment Registration Certificate 5.24.040 Repealed Qrdi, nee Ne 3844 >> 09Exemptions - --- 5,24 045 Health& Safety Requirements ^r^ a n,a;,,^r^o-,.t zQn� "�n°Massage establis ent operation 5.24.050 Repea4ed��an���844 1�,o� 5,24,055 Outcall Massages 5.24.060 �ihment—Prohibited Conduct 5 4,065 Responsibility 5.24.070 Repealed Ordi anee No 3 844 11 0- n ect y Cityofficials and n 'c violation 5.24.075 Transfer of Establishmen Re 5.24.080 Repealed OT-din ne No. 267 9/° Pnt Registration Certificate Expiration and Renewal 5.24.0 5 Revocation u ensi n o stablishm t Registration Certificate—M ssa e Business 5.24.090 orti 5.24.095 from Revocation, Sus ens' DEstablishment to s l en ' n earin Registration Certificate 5.24.100 Reapplication n After Denial 5.24,105 Violation—Penalty 5.24.110 Separate Violations 5,24,115 UnlamfuLOperation Declare-dNuisance 5.24.120 Repealed—Ordinance No. 466-2/81 5.24.125 Repealed—Ordinance N . 3844-11/09 5.24.130 Repealed—Ordinance Mo. 3844-11/09 —Ordinance o. 3267-9/95 5.24.140 Repealed 5.24.190 Repealed—Ordinance No. 3844-11/09 �'~ C'�1, (xC-�4� 5.24.200 Repealed—r0dinance ance No. 3844-11/09 5.24.210 Repealed— No. 3844-11/09 5.24.220 Repealed— ance No. 3844-11/09 5.24.225 n„+^^tt T 5.24.230 5.24.256 Repealed—Ordinance No. 3844-11/09 5.24.260 Repealed—Ordinance No. 3844-11/09 5.24.270 Repealed—Ordinance No. 3844-11/09 5.24.275 Repealed—Ordinance No. 3844-11/09 5.24.280 Repealed—Ordinance No. 2726-10/84 5.24.285 Repealed—Ordinance No. 3844-10/84 5.24.290 Repealed—Ordinance No. 2726-10/84 5.24.300 Repealed—Ordinance No. 2726-10/84 Huntington Beach Municipal Code Chapter 5.24 Page 1 of 19 5/19/10 HB -173- Item 12. - 22 5.24.310 Repealed—Ordinance No. 2726-10/84 5.24.320 Repealed—Ordinance No. 2726-10/84 5.24.330 Repealed—Ordinance No. 2726-10/84 5.24.340 UrAawfulep deel red ffuisanee 5.24.010 Definitions. Unless the particular provision or the context otherwise requires,the definitions and provisions contained in this section shall govern the construction,meaning, and application of words and phrases used in this chapter. (a) `Annlicant"means an applicant for an Establishment Registration Ce 'f cate. (h) "California Massage Therapy Council"or"CAMTC"means the State nonprofit organization c eated'to regulate and issue massage practitioner and therapist certificates pursuant to California.Business and Professions Code Section 4600— et sea. c "Certified"shall mean any valid certificate issued in accordance with SectiQns 2600 through 4620 of the California Business and Professions Code. (d) "Certified Mass\Business"means any business that pos esses a valid city business license and an Establishment Registration Certificate and where the only persons employed or used by that business to provide massage services have current and valid State Certifications (e) "Certified Massage Pr ctitioner"means any person holding a current and valid State Certificate issued by the California Massage Therapy Council pursuant to California Business and Professions Code Section 4600 et sea whether as a-massage practitioner or massage therapist, as defined therein. \ "Certified Sole Proprietorship"\means any massage business where the owner is the only person employed or used by that business to provide massage services and the owner has a current and valid State Certification And an Establishment Registration Certificate (g) "City"means the City of Huntington Bea h. (h) "Chief of Police or Designee" shall mean th\er on or persons designated to administer the provisions of this Chapter. \\ (i)"Compensation" shall mean the payment, loan, advance, donation,contribution, deposit. or gift of money or anything of value. (i) "Employee"means any person, other than a massage practitioner,manager or owner or operator,who renders any service,with or without compensation,to the owner or operator of a massage establishment relating to the day-to-day operation of the massage establishment whether as an employee or independent contractor. (k) "Establishment Registration Certificate—Business"or"Business Registration Certificate" means a certification issued by the Chief of Police upon submission o atisfactory evidence as required that a massage business or sole Proprietorsbip employs or uses oniv certified massage therapists r practitionQrs ralidcurrent State rti, a ' ns and has satisfied all other requirements pursuant to the provisions of thi�Chanter. 1 For purposes of this Ch er the "massage" r " shall h e same meaning. (ems Massage -ef-3 massage therapy", or_bodywork means any method of pressure on, or friction against or stroking,kneading,rubbing,tapping,pounding, vibrating, or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus or appliance, or with or without supplementary aids such as rubbing Huntington Beach Municipal Code Chapter 5.24 Page 2 of 19 5/19/10 Item 12. - 23 HB -174- alcohol, liniment, antiseptic, oil,powder, cream, ointment, or other similar preparations commonly used in this practice. (b>n "Massage establishment" means any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, or combination of individuals, engages in, conducts, carries on or permits to be engaged in, conducted or carried on, massages,baths, or health treatments involving massage or baths. (3467-6/00,3844-11/09) (eW "Massage therapist,""bodyworker,""bodywork therapist,"or"massage and bodywork therapist"means a person who is certified by the California Massage Therapy Ofg� ienCouncil under Subdivision(c)of Section 4601 of the California Business and Professions Code, and who administers massage for compensation. (2395-11/79,2466-2/81, 3267-5/95,3844-11/09) (dp) "Massage practitioner,""bodywork practitioner," or"massage and bodywork , practitioner"means a person who is certified by the California Massage Therapy i Of-gaiiizatieaCouncil under Subdivision(b) of Section 4601 of the California Business and Professionals Code, and who administers massage for compensation. (3267-5/95 3844-11/09) (g) "Operator"means the individual who manages the massage establishmenuEyidence of management includes but is not limited to evidence that the individual has power to direct or hire and dismiss employees control hours of operation create policy or rules or purchase _ _ - -- supplies. An operator may also be an owner. , (er)"Organization"means the California Massage Therapy zafiefiCouncil created pursuant to Sections 4600-4620 of the California Business and Professii�ons Code. (3267-9/95,3844-11/09) 11 ( ^�t�`�Fte�t�te-tert�--m��ge-arid--l�e�ye ^ Wig. ,``. (g) "Owner"means the individual(s)whose name appears on the City of Huntington Beach business license. (3267-9/95) (tl "Registered Certificate Holder"means a business that has been issued an Establishment Registration Certificate by the City's Chief of Police. (ul "State Certification"or"State Certificate'means a valid and current certification properly sued by the CAMTC pursuant to California Business and Professions Code Section 4600. et " " ineans the individual manages the massage establislunent. vi�ef -mited to evidenee that the individual has powef-to dir-eet of or fules or Ys>' -of operation, ereate r r ufehase Supplies , ^ A« ,• t9i' tL1�6-�L-f�6�'6MI@ . (3267 nine 9844 11r09) `t'17z`tl��tY2t �stlti r' J-Q[-Di'v=cs3=6$s Cede. -(3267 nioG 4!?AA 1 1 mo) cc » /� payment, loan, > donation, eentribution, deposit, gift of mene- —of value— , 5 24 020 Massagc/e ertification/Establishment Registration Certificate r eguired. It shall be unlawful for any person, association,partnership, corporation or other entity to engage in, conduct or carry on,permit to engage in, in or upon any premises within the City of Huntington Beach the business of providing massages in exchange for compensation without being currently certified as a.-massage practitioner or massage therapist by the California Massage Therapy 'Council in accordance with Sections 4600 through 4620 of the California Business and Professions Code and be a Certified Massage Business as described in 5.24.010(dj herein. Huntington Beach Municipal Code Chapter 5.24 Page 3 of 19 5/19/10 HB -175- Item 12. - 24 Geffifieatien by the Massage Therapy Organization R-'�Usl be obtained by Mafeh 1,2010. (2395-11l79,3267-9/95,3844-11109) 5,24.025 Application for Establishment Registration Certificate. Lai An application for an Establishment Registration Certificate shall be filed on forms provided by the City, submitted under penalty of per= and shall include the following information• (1) The full,true name under which the business will be conducted (2) The full true name of the applicant. (3) A complete statement listing and explaining any and all aliases and fictitious names used by the applicant within the last ten(10)years. (4)' The present or proposed business address where the business is to be conducted (5) \ A complete description of all services to be Provided at the proposed massage establishment. (6) 'Business Entity Type. (7) Tax ID number used for the income tax reporting for the business applying for. (8) The residence address of the applicant (9) Date�\of Birth. (10) Social,Security Number. (11) A valid and current driver's license and/or identification card issued by a state or federal governmerit,agency or other photogM&c identification bearing a bona fide seal by a foreign government.\\ (12) The original valid and current State Certificate issued by CAMTC If establishment owner is not State certified\a valid State Certificate must be provided for an employee or independent contractor. \ (13) The original valid and current ID Card issued by CAMTC. If establishment owner is not State certified, a valid ID Card must be provided for an employee or independent contractor. (14) The name and address of an\v massape business or other like business owned or operated by any person whose name is required to be given pursuant to this section for the ten(10)years _im_mediately preceding the filine.of the application_ (15) A description of any other business to be operated on the same premises, or on adioini g premises, o ed or controlled by&appfican (16) The name and address of the owner and lessor of the real property if any, upon-om with' which the business is to be conducted likluding The mailingdress lessee submits leaso o rental payments to. (17) A cQpy of the current lease agreement with I "";or of the real property which will include propea owner person—aLnarne, business 1'c ble, complete valid m 'lin addr and phone number. (18) A sigmdstatement authorizing the Cfty, s office ents and em to ees tseek information and conduct an investigation into the truf`ki of the statements set forth in the application and to ensure continual compliance with al pplicable provisions of law. (19) A signed statement that the business e 1 employ o State Certified Massage Practitioners or Therapists to provide massage services (20) si ned statement that all persons on establishmen prF,.misQs '11 be StaLe CertifiAe Massage Practitioners r Therapists whether a business employe&or independent ontractor (21) A signed siat-ement that all inde a dent massage practitioners on a blishmentprpmLses will be in possession of a valid current city business license (22) Co pleted Fingerprinting and background cb—eck fQL any bu ine s ow�or operator applying for an Establishment Registration Certificate who is not otherwise certified by CAMTC. (23) Payment of an Establishment Registration Certificate fee set by council resolution Huntington Beach Municipal Code Chapter 5.24 Page 4 of 19 5119/10 Item 12. - 25 HB -176- (b) An Applicant who is a business owner operator or tole proprietor and who is not CAMTC certified,must submit current background and fingerorint information to determine whether the Applicant has any of the following: (1) All convictions for any crone involving conduct which requires registration under California Penal Code Section 290 (Sex Offender Registration Act) (2) Convictions for violations of California Penal Code Section 266i (pandering). 315 (keeping or residing in house of ill-fame), 316 (keeping disorderly housel. 318 (prevailing un_on.nerson to visit place for gambling or prostitution), 647(b)_(nrostitution): 653,23 (Supervision of a prostitute): 415 (disturbing the peace). (3) Convictions of any felony offense involving tU sale of a controlled substance sp .' ed in Section 11054, 11055, 11056, 11057. or 11058 of the Health and Safety Code./ (4) Convictions of crimes designated in Government Code Section 51032. or anv crime involving dishonesty, fraud deceit,violence or moral Mwitude. (5) All injunctions for nuisances under Penal Code Section 11225-11235. (6) Convictions in any other state of any offense which if committed or attempted in this state would have been punishable as one or more of the referenced offenses/of his subpart. (7) Conspiracy or attempt to commit any such offense described in sub`secrions (1)-(6) of this u�b ate• ,�` (C) The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer/employee Such person shall complete and sign all application forms required of an individual applicant under this Chapter. The corporation's or partnership's responsible managing officer must at all times meet all of the requirements set by this Chapter or the corporation' or partnership.'s Establishment Registration Certificate shall befsuspended until a responsible managing officer who meets such requirements is designated. If no such'person is designated within ninety(90) days the corporation's or partnership's Establishment Registration Certificate is deemed canceled and a new application for registration must be filed. (d) A signed statement that the owner/applicant sha.f1 be responsible for the conduct of all employees or independent contractors working on the premises of the business and acknowledging that failure to comply with California Business&Professions Bode section 4600 et sea with any local. state or federal law, or with the provisions of this Chapter may result in the revocation of the Establishment Registration Certificate. (e) Zoning consistency check in writin. from the Citv's Planning and Building Department A zoning consistency check does not confer or authorize any entitlement to a use permit or building permit or similar.which process. if=Iicable:/is separate from the Establishment Registration Certificate process. Pa ent of a nonrefundable/registration fee in an amount established by resolution of the Citv Council. (g) Upon receipt of the completed application,the Chief of Police or Designee shall refer the application to other City departments that shall inspect the premises if any,proposed to be used al—a massage business and°shall make a written recommendation to the Chief of Police or Designee concerning compliance with the respective requirements. i I (h) The Chief of Police or Designee shall have up to sixty(60) Calendar day_s after the submission of all required information to complete an investigation. Huntington Beach Municipal Code Chapter 5.24 Page 5 of 19 5/19/10 HB -177- Item 12. - 26 5.24.030 Massage establishment or services—Business License Required. (a) Any person, association, corporation,partnership or other entity desiring to operate a massage establishment or provide massage services shall apply k obtain a business license and provide the following relevant information: (3267-9/95,3738-7/06,3844-11/09) (1) Full name of certificate holder(if applicable). (3844-11/09) (2) Date of Birth_ (3844-11/09) (3) State issued identification number (if applicable)_ (3844-11/09) (4) Social Security Number. (3844-11/09) (5) Home address and phone number. (3844-11/09) (6) Work address and phone number_ (3844-11/09) (7) Color photograph of the certificate holder_ (3844-11/09) (8) Proof of State7r1ification for those who will provide massage services,.(3844-11/09) (b) Prior to submitting the massage business license application,the fees as established by resolution of the City Council shall be paid to the City of Huntington Beach. (2395-11n9, 3267-9/95.3844-11/09) \ (c) The application for the massage business license does not authorize operation of a massage establishment or performing massage services until the business license is issued. (3844-11/09) (d) It shall be the responsibility of each massage business owner or operator to file copies or provide other evidence of the certificates held by the persons who are providing massage services at the business. (3844-11/09) (e) It shall be the responsibility of each massage business owner or operator to notify the City of any intention to rename, change manage nt, or convey the business to another person. (3844-11/09) 4.035 Approval or da ial of Establishment gi do c e (a) An Establishment Registration Certificate shall 71-issued by the Chief of Police or Designee to any Certified Sole Proprietorship that demonstrates all of the following: I. The operation, as proposed by the applicant if permitted would comply with all applicable laws including,but not limited to,the City's building, zoning,business license, and health---regulations and all requirements listed in this Chapter: \\ 2. The owner is the only person employed or used by that business to provide massage services: 3. The owner holds a valid and current State Certificate issued pursuant to Chapter 10 5 of the California Business &Professions Code and that the owner/apniicant is the same person to whom the CAMTC issued a valid and current State Certificate iden ' cat card• 4. The applicant ossesses a valid business license issued pursuant to the Huntington Beach Municipal Code: and 5. The applicant hasilot failed to provide information, a-s—surances. Qr dounientation required b this Chapter,has not failed to rev fact ma erial to qualification. r has not supplied information that is untrue or misleading as to a material fact pertaining to the aualification criteria. (b) An Establishment Registration Certificate shall be issued by the Chief of Police or Designee to any Certified Massage Business that demonstrates all of the following: Huntington Beach Municipal Code Chapter 5.24 Page 6 of 19 5/19/10 Item 12. - 27 HB -178- 1. The operation as proposed by the applicant if permitted would comply with all applicable laws. including,but not limited to.the Chy's building, zoning,business license, and health regulations and all requirements listed in this Chapter; 2. The massage business emnlays or uses only Massage Practitioners with C MTC State Certificates whose certifications are valid and current and that owners of the State Certificate are the same persons to whom CAMTC issued valid and current identification cardsy�n 3. The applicant has provided all information assurances or documentation required—,&this chapter,has not failed to reveal any fact material to qualification and has not suniilied information that is untrue or misleading as to a material fact pertaining to the d`ualificafio criteria. (c) The background check for any applicant/owner authorized by this Chanter shows that-such r►erscn_has not been required to register under the provisions of Section 290 of the California Penal Code; there exists no probable cause to believe a violation of the crimes indicated in section 5.24.025(bl herein or Califo-mia FmW Cade Secfion 415• has not had an individual or'business permit or license with any agency,board city, county, territory or state denied revoked restricted or suspended within the last five (5)years; and has not been subject to an injunction for nuisance under Penal Code Section 11225-11235 within the last five(51 years // (d) The Chief of Police or Desig_nee may deny issuance of an Establishment Registration Certificate for non-compliance with any of the above described requirements 5 24 040 Exemptions, Exemptions do not apply to independent contractors of ft listed exempted professionals The provisions of this Chapter 'hall not apply to the following classes of individuals or group while engaged in or performing the duties of their respective professions: (a) Physicians surgeons chiropractors osteopaths acupuncturists and physical therapists duly licensed to practice in the State of California. (b) Hospitals nursing homes sanitariums or other health care facilities duly licensed by the State of California provided that at allifimes such physician surgeons chiropractors osteopaths and physical therapists are acting in adherence with the provisions of the state law which govern fief R—egistered or license /vocational nurses ul registered by the State of California (it 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 hods and arms and below the knee (e) Accredited,high schools and colleges and coaches and trainers employed therein while acting within the scope.af their employment. (f) Trainers of any amateur, semi-professional or pro essional athlete or athletic team (a) No°'emnloved or independent contractor massage technician may administer massage ox otherwise treat or care for patients other than patients of the pracfitionex and those patients must have been prescribed massage t_herao by a practitioner listed in this seefion prior to the administration of the massas7e therapy. Huntington Beach Municipal Code Chapter 5.24 Page 7 of 19 5/19/10 HB -179- Item 12. - 28 (h) Physical Therapist students, and Massage Therapist students a ruing practical h- rs 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 Wervision 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. (il Owners of stand alone hotels with more than 100 on-site rooms for rent and which provide massage services for their s s on site by a state certified massage pra titioner or t er ist 4 e2a th & Safety Requirmcuts. All ymmises of a Certified MassagQBusiness shaLl b s b'ect to j2erio'dwinspection by the City or compliance with heafth, safety, and building standards and all such establis is shall comply with the following requirements: a i - subject to appNable provisions of the City's-codes, a recognizable and legible sign shalLbe posted at the main entrance 'dentifving the business as a massage establishment b tin -minimum lighfing-,shall be provided in accordance w't -the Electrical g ado t t o City and in addition at least one�ktificial 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 c Equipment- a e e e ment acq\eb'dable to the Orange County HealthD-=artmentfor disinfecting sterilizing instruments used ' erforming the acts of massage shall be provided, d Water-h t and cod running water shall e nrovided at all t' es Oe�Linen storage- closed cabinets shall be provided and utilized for storage of clean linens and mmyed receptacles acceptable to the Orange Countv\Health Department shall he provided for the deposit of soiled linen. (fl Separation of sexes -if male and female patrons are t\be erved simultaneously at the massage establishment a s arate massage room or rooms and separate—\-dressing, bathing and toilet facilities shall be provided and utilized for male and female patrons Each sW to facility or room shall be cl rly marked as such. Massage table pads - a s se massage tables shal be covereqn a professional manneLwith durable, washable plastic or other wat=roof material acceptable to the range ounty Heal Department. 5t24,950 Massage establishment ope ti n Every massage establishment's IWI co=ly with following operating requirements: a 1Each person mployed or acting as a massage therapist assa a D-acti i ner shall have a valid certificate issued by the California Massage Therapy Council a\clearly legible. copy of which shall be conspicuously posted in public view and be visible'from th_e entrance and/or reception and waiting area. (2) It is unlawful for the owner operator, responsible managing employee,manauPr nr certificate holder in charge of or in control of the massage establishment to employ or Huntington Beach Municipal Code Chapter 5.24 Page 8 of 19 5/19/10 Item 12. - 29 HB -180- permit a person to act as a massage therapist or massage practitioner who does not possess a valid massage therapist or massage practitioner certificate issues the. California Massage Therapy Council. (3) No business except those exempted under section 5 24 040 herein may employ anyone to provide massage or allow anyone to massage unless the massage provider possesses-a valid massage certificate issued by the California Massage Therapy Council Z (b)Bath and massage operations shall be carried on and the premises shall be oven only between the ours of l a.m. and 9 p.m. A massage begun any time before 9 p.m. must nev'6theless terminate—at-9 p.m.No person, whether certified or not,may provide massage after 9:00 D m. (c)A list of services shall be posted un an open public place on the premises and shall be desufl2gLinn readily understood language No owner, operator,responsible managing employee manager or certificate holder shall permit and no massage therapist or massage'practitioner shall offer to perform services other than those posted (d) Any massage establishment or business shall maintain on its menuses evidence r revi w by l c authorities that demonstrates that all persons providing massage services are certified by the Cal-if orni Massage Therapy Council. r' f (e)Each massage therapist and massage practitioner sha°11 wear the California Massage Therapy Council issued identification(or copy oD as their name tag on the outer clothing and the name tag shall be clearly visible at all times while on the premise The massfige therapist and massage practitioner shall not use any name other than specified on their certificate.while on duty. (fl Massage therapists and massage practitioners shall be fully clothed at all times Clothing shall be of a fully opaque non-transparent material and tirovide the complete covering from mid-thigh to three(3) inches below the collar bone. ' (¢)Areas where massages are to be pelf rmed shall be separated by anon-lockable door unless there is no staff available to assure security for clients and massage staff who are behind closed doors Said door shall not be equipped with a"n_ eeWIhole" 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 (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,wit a disinfectant approved by the Orange County 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 Instruments` ut' ized in Performing massage shall not be used on more one 1patron unless the have been sterilized using approved sterilizing methods Huntington;'Beach Municipal Code Chapter 5.24 Page 9 of 19 5/19/10 HB -1 s 1- Item 12. - 30 (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 keen a complete and current list of the names and residence addresses of all massage therapists_massage practitioners and employees of the massage establishment. and the name and residence addresses of the manager or managing employee ported 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 Cat � (m_ l Every massage establishment shall keep a written record of the date and hour of each treatment administered,the name an&address of each patron,the name of the massage therapist or massage 1ractitioner administering treatment, and the tune of treatment administered,to be recorded on a patron release form. Such written record,shall be open to inspection by officials charged with enforcement o this chapter. Such records shall be kept on the premises of the massage establishment for a period of two 2 ears. (n)No part of the establishment shall be used for residential or sle Qping nuurnoses. (o)No person shall enter,be, or remain iri any part of a massage establishment while in the possessio of,consuming, or using any alcoholic beverage or drug except a prescription drug. The responsible owner. operator, managing employee, manage%or permittee shall not permit any such person to enter or remain upon such premises. (p)Every massage establishment shall be open at alllimes during hours during which massage is being provided for inspection by any officer of the City of At"ington Beach 11 doors leading into massage—establishment r ea where massages are being performedshall remain unlocked urin business hours unless there is no stuff av Table to assure sec ' for clients and massage staff who are behind closed doors r No massage establishment shall si u u erate as a se ool of massage, or share facilitiu with a school of massage. s) The Owner shall have a continuing obligation to notify the Chief of.Police in writing of any changes in massage actitioner and owners, operators or-staff t seven \ Wendar days of such change. t)Every massage business owner or operator shall report in writing immediately to the Chief of Police any and all changes of address or ownership of the massage business 5.24.055 ® all Massages. No outcall massgge,whicha e in a \Ate es' e o at a location which does not regularly provide or permit massage, shall be conducted in hotel or motel room, or in the private residence of the Certified Massage Practitioner. No outcall mas age may be provided in a private residence or business not regularly providing massage services between 7 p.m. and 8 a.m. Huntington Beach Municipal Code Chapter 5.24 Page 10 of 19 5/19/10 Item 12. - 31 xB -182- 5.24,060 Massage Establishment-Prohibited Conduct: (a) No alcoholic beverages shall be sold, served, or_furnished on the premises of any massage establishment without a valid alcoholic beverage license from the State and conditional use permit from During e hours of operatim visitors shall not be pennitted in massage thera exce t o follows: 1 the parents or guardian of a patron who is a minor child may be esen in massage therapy room with that minor child: (2)the minor child of a patron may be present in t ge therapy room with the patron when necessary for the supervision of the child:or(3) conservator aid or other caretaker of a patron who is elderly or disabled may be present in the massage therapy morn with that elderly or disabled person. (c) No operator shall hire,employ or allow a person to perform massage services unless such person possesses a valid CAMTC Certificate. Each Operator of a massage establishment shall verify that all persons hold the appropriate State Certificate required by this Chapter. (d) No electrical.mechanical or artificial device shall be used bvtanv massage establishment staff for audio and/or video recording or for monitoring the performance of a massage of the conversation of other sounds in the massage rooms without the knowledge andpwritten consent of the patron. (e) A massage therapist or massage practitioner shall not violate the provisions of Sections 647(a) and(b) of the California Penal Code, or any other state law involving a crime of moral turpitude, and such practices shall not be allowed or permitted by anyone. (fl A massage therapist or massage practitioner'shall be fully clothed at all times and shall not expose their genitals,pubic area, buttocks, ov n the case of female therap oners,ists or practiti their breasts. and such practices shall not be allowed or permitted by anyone r' (g) A massage therapist or massage practitioner shall not massage a patron of one sex within the view of a patron of the opposite sex andisuch practices shall not be allowed or permitted by anyone unless all parties expressly consent to the treatment location and presence of the opposite sex. (1) This subsection shall not apply if all involved patrons are fully clothed excluding socks or stockings. ' (2) No more thanone male and one female may consent to be massaged in the same treatment room and no more than two members of the same sex may consent to be massaged in the same treatment room. 1 (3) No person under the age of 18 may consent to a massage in the presence of_another unless the other person isAe minor's parent or legal guardian. (h) A massage therapist or massage practitioner shall not massage fondle or otherwise have intentional contact with the genitals or anus of any patro& or the breasts of a female patron and suc practices shall not be allowed or permitted by anyone. r� Huntington Beach Municipal Code Chapter 5.24 Page 11 of 19 5/19/10 HB -183- Item 12. - 32 G) A massage therapist or massage practitioner shall not give a massage unless the breasts of female patrons are covered and the genitals of all patrons are covered, and such practices shall not be allowed or permitted by anyone. .24.065 Responsibility. The owner or operator of a massage business or establishment shall be responsible for the conduct of all employees or independent contractors working on the premises of the business, 5�24A70 Inspection by City officials and notices of violation. CaA The in �es ' a in officials of the i as designated by the Chief of Police include, but are nQj limited to,representatives of the City's Police Department, Finance Department,Fire Department, Planning and Gilding Department and the County Health Officer, shall have the right to enter the premises from time to time during regular business hours prior to the issuance of an Establishment Registration Certificate and subsequently for the purpose of making reasonable inspections to enforce compliance with this Chapter and with building, fire, electrical,plumbing, and/or health and safety regulations, In the event an Establishment Registration Certificate has been issued; it maybe revoked or suspended in the manner hereinafter set forth in this Chapter. (b) No person shall refuse to p\it, cause delay o£ or interfere with, a lawful inspection or compliance heck of the premises by Cityor Co officials at any time— Whenever any City official inspects a massage business and finds that any provision of this Chapter has been violated,he or she shall give notice of such violation by means of an in report or other written notice including but not limited to issuing a citation for each and every violation of his Chapter or other applicable laws. In an such notification.the investigating person shall: (1) Set forth the specific violation or v of Lions found, and shall notify the Registered Certificate Holder that failure to comply\with any notice issued in accordance with the Provisions of this Chapter may result in the revocation or suspension of the Establishment Registration Certificate, 2) The Registered Certificate Holder may be iL warning that any future violation of this Chapter may result in suspension or revocation of the Establishment Registration Certificate or the City officials may establish a specific and reasonable period of time for the correction of the violation or violations. No time to correct need be given for health and safety violations or violation of criminaLlaw. \ (3) The Registered Certificate Holder and operator shall take iu'rnediate action to correct violations and the City officials may re-inspect the business for co=li nce. 5 24 075 Transfer of Establishment Registration Certificate An Establishment Registration Certificate shall not be transferrable between persons or business owners The change of business address shall be allowed on an Establishment Registration_Cerdficate,_providing at the same persons are listed as the business owner,the new business location complies with al provisions of this Chapter, and the location transfer fee is paid upon request of transfer from one business location to another business location Huntington Beach Municipal Code Chapter 5.24 Page 12 of 19 5/19/10 Item 12. - 3 3 HA -184- 5 24 080 Establishment Registration Certificate Expiration and Renewal. An Establishment Registration Certification shall be valid for one year,coinciding with the city business license effective and expiration dates 5,24,085 Revocation or SuspensionEstablishment at` n Certificate—MasBn An Establishment Registra6m Certificate may be suspended or re e o/any of the following grounds: 1) There is probable cause to believe an owner, r t oradlion/orpoagidner who owns five (5)percent or more of the massage business has committed a violation that could have caused denial of the Establishment Registration Certificate. (2) There is probable cause to believe a Registered Certificate Holder has made a material misrepresentation on the application for an Establishment Registration Certificate or renewal: r (3) There is probable cause to believe the Registered Certificate Holder has engaged in conduct r operated the massage business or as a Massage Practitioner in a manner which violates an�of e provisions of this Chapter, any conditions of the Establishment Registration Certificate or any of the laws which would have been grounds for denial of the Establishment Registration Certificate. (4) The owner or operator of a Certified Massage Business employs or uses non-certified massage technicians to perform massage servi6es. (5) Violations of this Chapter or of California Business&Professions Code section 4600. et sea. have occurred on the business p��,, �f (6) The Registered Certificate Holder has failed to comply with one or more of the health and safety requirements under this Chanter. (7) The Registered Certifi ate�Holder has engaged in fraud misrepresentation or false statements in obtaining or maintaining an Establishment Registration Certificate. No massage establishment shall be established at a location where a a sa a ablishment closed due to conductwhich violated any of the provisions of this Chapter for 1 year. 4 Revocation or Suspension Heajin (a) Notice of revocation or suspension shall contain a statement of the violation(s) which constitute the basis for suspension or revocation and information about the right to appeal and the necessity of an appeal/as a prereauis�t_igation The Registered Certificate Holder shall have ten(10) calendar days to appeal to the Chief of Police of Designee. (b) A hearing shall be scheduled with the Chief of Police or Designee upon not less than ten(10) calendar days notice to the Registered Certificate Holder. i Huntington Beach Municipal Code Chapter 5.24 Page 13 of 19 5/19110 HB -185- Item 12. - 34 cl Notice shall be given by personal service or certified or registered mail to the address shown on the last application or renewal. If reasonable attempts to otherwise serve are not successful. service may be provided by first class mail. (d) Service shall be deemed complete when personal service is made, when the certified letter is \efiver�e when the decision is mailed by first class m il. e) Unless otherwise specifically prohibited by law,the burden of proof is on the Registere Certificate Holder/applicant in any hearing or other matter under this Chapter. Formal rules of evidence shall not apply to the hearing. fl If the Establi�ent Registration Certificate is suspended or revoked, the Establishment Registration Cerkccaate shall be surrendered. 24.095 Anneals from Revocation. Suspension or Denial of Establishment Registration Certificate. (a) Appeals from any decision frthe Chief of Police under this Chapter shall be in writing, shall clearly state all applicable basis for the\appeal, and shall be filed with the City Clerk not later than fifteen (15) calendar days following the date of notice of the decision. (b) The City Clerk shall not accept an appeal. and no hearing shall be held,unless the appellant has paid a filing fee, in an amount set by resolution of the City Council,to defray the cost of such appeal. Any appeal without the timely payment of fees,shall be considered to be untimely. (c) The scope of the appeal hearing pursuant tb this section shall be limited to those issues raised by tt_e appellant in the written appeal, as submitted pursuant to subsection(a) of this section. d Upon receipt of a timely led appeaL the i �erk shafl set the matter for hearing before the City Manager or Designee. The hearing shall be held not fewer than ten(10) calendar days and not more than thirty(30) calendar days from the date of the appeal rea.uest. The hearing may be continued from time to time upon the mutual consent of the parties. (e) The appellant shall be provided with notice of the time and,place of the appeal hearing, as well as a copy of all relevant materials at least ten(10) calendar days prior to the hearing, .24.100 Reapplication After Denial. No reapplication for an Establishment Registration Certificate will be accepted within one year after an application or renewal is denied'ar an Establishment Registration Certificate is revoked,provided that, if an Establishment Registration Certificate is denied for the sole reason that a massage practitioner does n t nossQas a CAMTC ceAffication. reapplication may occur after CAMTC certification has been attained 4.105 Violation—Penalty. Any person violating this Chapter shall be guilty of a MISDEMEANOR,punishable by a fine of one-thousand dollars ($1.000) or by imprisonment in the c unty jail for a period not to exceed six(6)months, or by both such fine and imprisonment. 5.24.110 Separate Violations, Each violafion described in sections 5.24,045, 5,24,050, 5,24.055 and 5 24.060 shall constitute a separate violation and each violation may be charged as a separate count in the event of administrative or criminal enforcement Huntington Beach Municipal Code Chapter 5.24 Page 14 of 19 5119/10 Item 12. - 3 5 HB -186- 5 24 115 Unlawful Operation De lared Nuisance Any massage establishment operated, conducted or maintained contrary to the provisions of this chanter shall be and the same is hereby declared to be unlawful and a public nuisance. 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 abatement removal or enjoinment thereof, in the manner provided by law. The City Attorney shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as shall abate or massageremove such establishment and restradn and enjoin any person from operating, con g or maintai im a massage establishment contrary to the provisions of this Cha ter. 5.24.150 Exemptions. Exemptions do not apply to independent contractors of the list d exempted professionals. The provisions of this chapter shall not apply to the following classes of individuals or groups while engaged in or performing the duties of their respective rofessions: (2395-11/79, 3267-9/95,3694-2/05,3844-11/09) (a) Physicians, surgeons, chiropractors, osteopaths, acupuncturists, and physical therapists duly licensed to practice in the state of California. (3467-6100) f (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) a (c) Registered or licensed vocational nurses duly registered by the state of California. (3694-2/05) (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. (3694-2/05) {M (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 otherithan 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. (3694-2/05) (h) Physical Therapist students, and Massage Therapist students earning practical hours for school/education, and who are Arrently 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 def ned 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 ,{3694-2/05) (i) Owners of stand alone hotels with more than 100 on-site rooms for rent and which provide massage services for their guests on site by a state certified massage practitioner or therapist. (3876-5/10) � c 24 1 60 V J GL lta{>1Jg111LatLlJle and legible S'1gi Huntington Beach Municipal Code Chapter 5.24 Page 15 of 19 5/19110 HB -187- Item 12. - 36 •• I • Imp r i•��: Man •. • Now Nu •, • r• r• • •, • •• a Y. • aim m a a - i . . .. Prim on. 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WIN W"011 11 1 ' i i� or ill lieu , �> i r �YL r. r� �y ff jet gyp% 3 Y fJ �W a� f J!Y t $,r f f Huntington Beach Municipal Code Chapter 5.24 Page 19 of 19 5/19/10 xB -191- Item 12. - 40 Amendment to 5 . 24 HBMC Massage Establishments Miss City Council Meeting March 4, 2013 Background Senate Bill 731 ( 2008) ✓ Created California Massage Therapy Council ( CAMTC) ✓ Reduced local government regulatory authority over massage establishments 2009 Huntington Beach Amendments ✓ Modified Huntington Beach Zoning and Subdivision Ordinance and Municipal Code to comply with state law Impact of Changes ✓ Number of massage establishments increased significantly ✓ Overwhelmingly, the increase has been illicit massage establishments ✓ The number of massage establishments is continuing to grow ✓ Oversight by the CAMTC has proven to be inadequate and ineffective What is an " Illicit Massage Establishment " ✓ Disclaimers o Massage is a legitimate profession with many professional therapist working in the field o Presentation is rated "PG" ✓ Illicit Massage Establishment — massage therapists perform sexual services for money ✓ Huntington Beach currently has about 65 massage establishments ( 56 new since law changed — almost all illicit massage establishments) pc i Sweetest aslan girls,take your stress away...come and flml out more...-28 Reply cock Wre we arewam nave�y sae uagea area come aAym us lame aea loucnmmm ow pns are pMe amw iemseeanas mes�espersrnany wrm you ae nere ywve m.ivq Rdn.q eu sexy wuc no-aorwn.qumaxeea vw.�nme me oes rda as enmame ass.tax ta<vwr s10 aaur.mr m,ra r I„xe massge PAW. 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MOsu Xumeee: - $) e 1 YTweel g nu.>,e� Y a��:y'J�. vim.ose Ye�,ran 4Y n >., wm®IJwaye 4NrnaW W,b,tmxw<n,rl]I OIbF nBnSW DMa NMwrpaneaammuage ryllolH THM34a9Hdge'M.in G apa% Nan dmp ,a Gd.]Prve,Na9sage baO,mlrnael camamia sew.ss9 d;cio PNN uaasage mevmlmael. annm�a 0o au ke rourmengs aeam ,awnace,: V8Nu1ne9 Oe/J JYHIYIdMI aam Do ew NeFxwmq WmnEeeer mature padiP Mao%NPw YeMm/(V? Sums Real lee orlmpknka Ymnaememwangen nerer TpP to Po,n91y G9 M Ea Me Fry Maw+,ea Naazeuce yu ....a x,..e..e.ry MWENKa1a559U9P ab faaPr i+nel�e Maawaussseuu aas ee a A " Victimless " Crime ✓ Public health concerns ✓ Related and associated crime concerns ✓ Neighboring business owner concerns ✓ Who are the real victims ? o Human Trafficking 5 . 24 HBMC Amendment How does amendment improve our regulatory authority over massage establishments ? ✓ 5 . 24.020 Massage Certification/Establishment Certificate required ( 157 ) ✓ 5 . 24 .050 Massage Establishment operation ( 163 ) ✓ 5 . 24 .060 Massage Establishment — Prohibited Conduct ( 165 ) M- - 1 ✓ 5 . 24 . 085 Revocation or Suspension of Establishment Registration Certificate ( 168 ) o (b) No massage establishment shall be established at a location where a massage establishment was closed due to conduct which violated any provision of this Chapter for 1 year ✓ 5 . 24 . 040 Exemptions ( 161 ) Questions ? MASSAGE ORDINANCE Hi IL M Gerry Caterina ADDRESS .._-. 33 YEARS ON „YPitd, I want to talk to you about the massage ordinance. I have no connection to the industry other than as a customer. Talk about unnecessary regulations. Wow! Most of the following is in the current law, but is unnecessary and should be deleted. Have you read this law? Unnecessary requirements will sharply reduce competition and drive the price much higher. I can get a 1 hour massage at a number of places for $30 or less. If the price goes up, I can't go very often and my old body needs it Under the old law with only 9 places, massages were very expensive and out of reach for all but the 1%. Now this service is within reach of many in the 99% because of competition. Demand is high among the 99%. 1 believe the police should control prostitution. It's not that difficult. Raid those whose advertising implies prostitution. Please don't transfer the cost of enforcing prostitution laws to law abiding citizens in the form of higher prices. Why use SLOW a hand grenade which will inflict substantial damage to innocent bystanders? SLOW Use a snipers rifle. By the way, I have never been propositioned. The Police Chief said that most massage women are victims of human trafficking. I urge you to end this practice, yet preserve the ability of legitimate businesses to provide massage at today's low price. This means not increasing their investment or restricting their sales volume. The ordinance requires separate rooms. Unnecessary. Many places currently do not have separate rooms but adequate privacy is currently delivered. This is one of the reasons $30 massages exist. Separate rooms means higher investment and smaller sales volume. Thus the need to raise the price. I guarantee you prostitution does not exist at those places that do not have very private rooms! You should encourage common area massage. No private room, no prostitution! The ordinance requires that all massages end at 9PM. This unnecessarily restricts after work massages and the income of all concerned. 10 PM is more reasonable. Last massage that starts at 9, ends at 10 seems more reasonable. The ordinance requires that the name and address of each patron is recorded. This is excessive. P Massage CC 3-1 8-1 3 Page 1 311 8/201 3 5:47 PM gac In every doctor's office or chiropractors office that I've had a massage, it was in the nude. This is prohibited under the ordinance. This should be up to the patron The following are required and should not be: separate rooms, closing at 9PM, should be 10PM, name and address of customers, underwear, should be optional. My handout includes the ordinance headings for each topic I discussed. THANK YOU. Call around, you will find a $30 or less massage. I encourage you to try it, you'll like it. A private room will cost more. 5.25.045 f private room 5.24.050 g private room 5.24.060 g private room 5.24.050 b close at 9pm 5.24.050 m name and address 5.24.060 g men cannot see women 5.24.060 i nude P Massage cc 3-18-13 Page 2 3/18/2013 5:47 PM gac