Ordinance Number 1055 ORDINANCE NO. 1055
AN ORDINANCE OF THE CITY COUNCIL OF THE SAN
JUAN CAPISTRANO, CALIFORNIA, AMENDING SAN JUAN
CAPISTRANO MUNICIPAL CODE TITLE 5, PUBLIC
WELFARE, CHAPTER 24, REGULATION OF MASSAGE
THERAPY, TO UPDATE THE CITY'S MASSAGE
REGULATIONS
WHEREAS, the purpose of this Ordinance is to amend the San Juan Capistrano
Municipal Code to update the City's regulation of massage establishments to comply with
State law and to further ensure public safety;
WHEREAS, Municipal Code Title 5, Public Welfare, Chapter 24, Regulation of
Massage Therapy, regulates the licensing and operation of massage establishments as
well as the licensing and practice of individual massage therapists, whether or not the
owner or operator of a massage establishment, in the city;
WHEREAS, the California Massage Therapy Act (Cal. Bus. & Prof. Code § 4600
et seq.) regulates the practice of massage therapy in the state;
WHEREAS, AB 1147 amended the California Massage Therapy Act and the
California Government Code to provide that local governments may regulate licensing
and operation of massage establishments, while, generally, only the state may regulate
licensing and practice massage therapists (Cal. Bus. & Prof. Code § 4612; Cal. Gov.
Code § 51034);
WHEREAS, the City Council intends to amend Municipal Code Chapter 24 to
remove, where appropriate for compliance with AB 1147, regulation of the licensing and
practice of massage therapists;
WHEREAS, there is evidence in other jurisdictions that massage establishments
serve as fronts for prostitution or human sex trafficking, the potential for criminal and
unsafe activity at massage establishments is particularly concerning given that some
massage establishments in the City are located within proximity to places where families
congregate, such as restaurants and shopping areas;
WHEREAS, law enforcement action in other jurisdictions to investigate and
identify such criminal activity at massage establishments have, in many cases, exposed
criminal activity to occur in the middle of the night and outside normal business hours;
WHEREAS, the impacts of an illegal massage operation remain at site even after
cessation of the operation; impacts include decreased consumer confidence in the legal
operation of future massage establishments at the site, decreased consumer confidence
in the neighboring businesses, and confusion among customers regarding the any
connection between the closed illegal operation and a new legal operation;
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WHEREAS, the City Council intends to amend Municipal Code Chapter 24 to add
standards for massage establishment that will increase security and transparency;
WHEREAS, all legal prerequisites to the adoption of the Ordinance have occurred.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN JUAN
CAPISTRANO DOES ORDAIN AS FOLLOWS:
SECTION 1. The recitals above are each incorporated by reference and adopted
as findings by the City Council.
SECTION 2. San Juan Capistrano Municipal Code Title 5, Public Welfare, Chapter
24, Regulation of Massage Therapy, is hereby amended as follows:
TITLE 5. PUBLIC WELFARE
CHAPTER 24. REGULATION OF MASSAGE ESTABLISHMENTS
Sec. 5-24.01. Findings and intent.
The City Council finds and declares as follows:
(a) The licensing requirements imposed by this chapter are necessary
to protect, the health, safety, and welfare of the citizens of the city;
(b) The city is authorized by Government Code Section 51031 to
regulate massage establishments and impose reasonable standards
relative to the skills and experience of massage operators and
massage therapists and the conditions of operation of the massage
establishment;
(c) There is significant risk of injury to massage clients with certain
medical conditions and this chapter provides certain safeguards
against injury and economic loss;
(d) The restrictions and requirements contained in this chapter reduce
the burdens on the City's Police force and permit the deployment of
personnel such that more serious crimes may be prevented;
(e) The regulations herein will promote the discouragement of massage
establishments from degenerating into houses of prostitution and the
means utilized in this chapter bear a reasonable and rational
relationship to the goals sought to be achieved.
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Sec. 5-24.02. Definitions.
For the purpose of this chapter, the words, terms, and phrases set forth in
this section shall have the meanings herein set forth unless the context
clearly requires a different meaning.
(a) "Accessory massage establishment" means an establishment that
provides massage, which is incidental to the primary business,
where the owner of the primary business is responsible for the
massage services and conduct of the massage therapists employed
at the location.
(b) "California Massage Therapy Act" means California Business and
Professions Code Chapter 10.5, commencing with Section 4600, as
amended.
(c) "California Massage Therapy Council" means the non-profit
organization formed pursuant to Business and Professions Code
Chapter 10.5, commencing with Section 4600, as amended.
(d) "Conviction" or "convicted" means a verdict or formal judgment of
guilt, or entry of a plea of guilty or nolo contendere in a criminal
proceeding.
(e) "Disqualifying conduct" means the occurrence of any of the following
events within five (5) years immediately preceding the date of filing
of the application in question or, in the case of nonrenewal,
revocation or suspension proceedings, within five (5) years of the
date of said notice of hearing.
(1) A conviction in a court of competent jurisdiction of any of the
following:
(A) Any misdemeanor or felony offense which relates
directly to the operation of a massage establishment,
or during the performance of a massage, whether as a
massage establishment owner or operator, or as a
massage therapist;
(B) Any felony the commission of which occurred on the
premises of a massage establishment;
(C) Any crime specified in the California Penal Code
Sections 266(h), 266(1), 315, 316, 318, or Section
647(a), or 647(b);
(D) Any crime specified in Government Code Section
51032;
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(E) Any felony offense involving the sale of a controlled
substance specified in California Health and Safety
Code Sections 11054, 11055, 11056, 11057, or 11058;
(F) Conspiracy or attempt to commit any of the aforesaid
offenses;
(G) Any lesser-included offense of any of the aforesaid
offenses;
(H) Any offense in a jurisdiction outside of the State of
California which is the equivalent of any of the
aforesaid offenses.
(2) For purposes of considering whether to renew or revoke a
license, the licensee engaging in or committing any of the
conduct described in California Penal Code Sections 266(h),
266(1), 315, 316, 318, or Section 647(a) or 647(b) or
Government Code Section 51032.
(3) The requirement to register under the provisions of California
Penal Code Section 290.
(4) Becoming subject to a permanent injunction against the
conducting or maintaining of a nuisance pursuant to California
Penal Code Sections 11225 through 11235 or any similar
provisions of law in a jurisdiction outside the State of
California.
(5) Becoming subject to a permanent injunction against the
conducting or maintaining of a nuisance pursuant to California
Health and Safety Code Sections 11570 through 11587 or any
similar provisions in a jurisdiction outside the State of
California.
(6) The denial, nonrenewal, suspension, or revocation of any
license or permit issued by any State, County, City, or other
local government within the United States for the operation of
a massage establishment or for the performance of
massages, except that denial of license or permit for the
operation of a massage establishment shall not be considered
if the sole basis for the denial was the prohibition of the use
within the zoning or planning district in which the use was
proposed to be located.
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(7) Touching the genitals, pubic regions, anuses, or female
breasts below a point immediately above the top of the
areolae, whether or not the same are covered, of oneself or
of another person while providing massage services or while
within view of a customer or patron of the massage
establishment.
(8) Exposing the genitals, pubic regions, anuses, or female
breasts below a point immediately above the top of the
areolae of oneself or of another person to view while providing
massage services or while within view of a customer or patron
of the massage establishment.
(f) "Employee" includes every owner, partner, manager, supervisor, and
worker, whether paid or not, who renders personal services of any
nature in the operation of a massage establishment.
(g) "Manager" means a person who has been designated by an operator
to be responsible for the operation of a licensed massage
establishment.
(h) "Massage" 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 other
appliances or devices, with or without such supplementary aids as
rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion,
ointment, or other similar preparations.
(i) "Massage establishment" means any establishment having a fixed
place of business where any individual, person, firm, association,
partnership, corporation, joint venture, limited liability company, or
combination of individuals that engages in, conducts, carries on, or
permits to be engaged in, conducted, or carried on for consideration,
massages, baths, or health treatments involving massages or baths
as regular functions. The term "massage" also includes the following
businesses, callings, or occupations:
(1) Acupressure;
(2) Anatomy care;
(3) Body wrap;
(4) Holistic health center or practitioner;
(5) Holistic therapy;
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(6) Hydro therapy;
(7) Public bath;
(8) Sauna;
(9) Sports massage;
(10) Stress management center;
(11) Toxic herbal massage;
(12) Massage parlor; or
(13) Reflexology.
(j) "Massage therapist" means any person who administers massages,
baths, or health treatments involving massages or baths as the
principal functions to another person for any consideration
whatsoever, and meets the training and certification requirements
established herein.
(k) "Operator" means a person who has been issued a license to operate
a massage establishment.
(1) "Person" means any individual, firm, association, partnership,
corporation, joint venture, limited liability company, or combination of
individuals.
Sec. 5-24.03. Exemptions and exceptions.
(a) Exemptions. This chapter shall not apply to the following classes of
individuals:
(1) Nurses or physical therapists who are duly licensed to practice
their professions in the State of California under the provisions
of Business and Professions Code, while performing activities
encompassed by such professional licenses;
(2) Other health care personnel engaged in the healing arts as
regulated and licensed by California Business and
Professions Code Division 2;
(3) Physicians, surgeons, chiropractors, acupuncturists,
acupressurists, or osteopaths who are duly licensed to
practice their respective professions in the State of California
under the provisions of the Business and Professions Code,
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or bona fide employees thereof, while performing activities
encompassed by such professional licenses;
(4) Barbers, estheticians and beauticians who are duly licensed
under the laws of the state of California while engaging in
practices within the scope of their licenses;
(5) Hospitals, nursing homes, sanatoriums, or other health
facilities duly licensed by the state of California;
(6) Coaches and trainers in accredited high schools, junior
colleges and colleges or universities acting within the scope
of their employment;
(7) Trainers of amateur, semi-professional or professional
athletes or athletic teams so long as such persons do not
practice massage therapy as their primary occupation at any
location where they provide such services in the city; or
(8) Any profession over which the state has assumed exclusive
jurisdiction as a matter of statewide concern and which gives
the services or treatments included in the term "massage," as
herein defined, as incidents to such business, calling or
profession.
(b) Exceptions. If in compliance with all other provisions of this chapter
and otherwise legally operating in the city, an accessory massage
establishments the following is excepted from the massage
establishment license requirement of this chapter:
Sec. 5-24.04. Display of permits, licenses.
Each massage establishment shall display its massage establishment
license, and the license of each massage therapist employed or performing
massages at the establishment in an open and conspicuous place on the
premises. Passport-size photographs of the licensee shall be affixed to the
respective license and permits on display pursuant to this section.
Sec. 5-24.05. Massage establishment license required.
(a) It shall be unlawful for any person, to own, operate, manage, engage
in, conduct, or carry on, in or upon any premises within the City, a
massage establishment without a massage establishment license
obtained in accordance with this chapter.
(b) A massage establishment license shall only be issued to the person
signing the application, after compliance of this chapter and all other
applicable provisions of this Code, including, but not limited to, the
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payment of the appropriate application license fees, unless grounds
for denial of such license are found to exist.
(c) A separate license shall be obtained for each separate massage
establishment owned, operated, or managed by such person.
Sec. 5-24.06. Application for massage establishment license.
(a) A completed application for a massage establishment license shall
be filed with the Chief Financial Officer, or his or her designee.
(b) The completed application shall set forth the exact nature of the
massage, bath or health treatments to be administered, the
proposed place of business and facilities therefore, and the current
and valid name and address of the applicant. The applicant shall also
furnish the following information:
(1) The previous addresses of applicant, if any, for a period of five
(5) years immediately prior to the date of the application and
the dates of residence at each;
(2) Written proof that the applicant is at least eighteen (18) years
of age;
(3) The history of the applicant as to the ownership, operation, or
management of any massage establishment or similar
business or occupation within five (5) years immediately
preceding the filing of the application. Such information shall
include, but shall not be limited to, a statement as to whether
or not such person, in previously owning, operating, or
managing a massage establishment within this State under a
permit or license, has had such permit or license revoked or
suspended and the reasons therefore; and the business,
activity or occupation the license applicant engaged in
subsequent to such action of revocation or suspension;
(4) All criminal convictions of offenses described in Section 5-
24.02 of this chapter; whether the applicant is required to
register under the provisions of California Penal Code Section
290; whether the applicant, including a corporation or
partnership, or a former employer of the applicant while so
employed, or a building in which the applicant was so
employed or a business conducted, was ever subjected to an
abatement proceeding under California Penal Code Sections
11225 through 11235, California Health and Safety Code
Sections 11570 through 11587 or any similar provisions of law
in a jurisdiction outside the State of California;
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(5) Applicant's height, weight, and color of eyes and hair;
(6) Two (2) prints of a recent passport-size photograph of
applicant;
(7) Business, occupation, or employment history of the applicant
of the five (5) years immediately preceding the date of the
application;
(8) If the applicant is a corporation, limited liability company,
limited liability partnership, general or limited partnership, or
other form of business entity other than a sole proprietorship,
the name of the business entity shall be set forth exactly as
shown in its articles of incorporation or formation document,
together with the names and residence addresses of each of
its officers, directors, managing members, and/or general
partners and each stockholder, member, or limited partner
holding more than five (5) percent of stock of or interest in the
business entity, along with the amount of stock or interest
held. If one or more of the partners or members is a
corporation, the information required herein for the applicant
shall also be required for such partners or members. The
application shall be signed by the individual who is and shall
be responsible for all actions, omissions, and conduct of the
applicant licensee;
(9) The following information for each person currently employed
or intended to be employed in the massage establishment,
regardless of the nature of employment:
(A) Name and contact information, including residence
address;
(B) License status under the California Massage Therapy
Act, and, if applicable, a copy of the license;
(C) Proposed or actual nature of the work performed or to
be performed; and
(D) Recent passport-sized photograph for identification
purposes ;
(10) The application shall not be deemed complete until:
(A) The applicant has furnished clear, legible, and
classifiable fingerprints, as reasonably determined by
the Orange County Sheriff's Department, to the City for
the purpose of establishing identification;
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(B) All other employees, who are massage therapists
licensed under the California Massage Therapy Act
have provided proof of the background check
completed pursuant to California Business and
Professions Code Section 4060 of the California
Massage Therapy Act; and
(C) All other employees, who are not massage therapists
licensed under the California Massage Therapy Act,
have furnished clear, legible, and classifiable
fingerprints, as reasonably determined by the Orange
County Sheriff's Department, to the City for the
purpose of establishing identification;
(11) Such other information as may reasonably be deemed
necessary by the City Manager or determined to be necessary
by the Orange County Sheriff's Department to investigate the
accuracy and veracity of the information required in the
application;
(12) If the applicant is not the owner of the property proposed as
the location for the massage establishment, the applicant
shall submit a notarized statement signed by the property
owner, consenting to the operation of the massage
establishment at the location by the applicant and a copy of
the lease between the property owner and the applicant for
the massage establishment;
(13) If the applicant is assuming control over an existing massage
establishment, and the existing licensee will not be an owner
or operator of the massage establishment for the entire term
of the new license, then the new license shall not be issued
unless and until the former massage establishment license
has been surrendered and relinquished to the City;
(14) A statement in writing by the applicant that he or she certifies
under penalty of perjury that the foregoing information
contained in the application is true and correct, said statement
being duly dated;
(15) Authorization for the City, its employees and agents to seek
information and conduct an investigation into the truth of the
statements set forth in the application and the qualifications of
the application for the license;
(16) Acknowledgement in the application that the appointment of a
Manager by the applicant constitutes consent by the applicant
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for assumption of responsibility for all acts and conducts of the
manager, including service of notices by the city; and
(17) A sketch or diagram showing the complete interior
configuration of the business, including without limitation the
location of the restrooms, massage rooms, customer areas,
employee only designated areas, and any facility
requirements as identified in this chapter. The sketch or
diagram need not be professionally prepared, but it must be
drawn to a designated scale, with marked dimensions of the
interior of the premises to an accuracy of plus or minus six
inches.
Sec. 5-24.07. Grounds for denial of massage establishment
license.
(a) Within seventy-five (75) days following receipt of a completed
application, the Chief Financial Officer, or his or her designee, shall
either issue the license or mail a written statement of the reasons for
denial thereof, unless such period is continued for good cause as
provided herein.
(b) The Chief Financial Officer may continue his or her determination to
approve or deny a completed application for a period not to exceed
sixty (60) days, in the event that the review of a completed
application involves obtaining documents, records, or information
from another governmental agency, including, but not limited to, the
State of California, Department of Justice, and that agency cannot
reasonably respond to the Chief Financial Officer's request within the
time required for the Chief Financial Officer to complete his or her
review of the completed application, or in the event that additional
time is necessary to complete the identification or refingerprinting of
the applicant or persons to be employed by the massage
establishment. In the event the Chief Financial Officer determines to
continue the application review period, written notice shall be mailed
to the applicant stating the period of the continuance and the reasons
therefore.
(c) The Chief Financial Officer shall deny a license to the license
applicant where any of the following conditions exist:
(1) The applicant has made one or more material misstatements
in the completed application for a license;
(2) The applicant, if an individual; or the stockholders holding
more than five (5) percent of the stock of the corporation; the
officers and directors and each of them if the applicant be a
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business entity; or the partners, including limited partners, and
each of them, if the applicant be a partnership; the members,
and each of them, holding more than five (5) percent of the
interest in the entity if the applicant is a limited liability
company; and the manager or other person principally in
charge of the operation of the business, or any such
individuals, is a person who has engaged in disqualifying
conduct in the five (5) years immediately preceding the date
of the application;
(3) The massage establishment, as proposed by the applicant, if
permitted, would not comply with all the applicable laws,
including, but not limited to, all the City's building, fire, zoning,
and health regulations;
(4) The applicant or any persons to be employed at the massage
establishment are persons who have engaged in disqualifying
conduct;
(5) The applicant has violated any provision of this chapter, or
any similar ordinance, law, rule, or regulation of any other
public agency which regulates the operation of massage
establishments; or,
(6) The applicant is less than eighteen (18) years of age.
(d) Appeal process. A denial of the application for a massage
establishment license may be appealed in accordance with Section
5-24.22 of this chapter.
Sec. 5-24.08. Massage establishment facilities and operations
requirements.
(a) Facilities. All massage establishments shall comply with the following
facilities requirements:
(1) Massage establishments shall comply with all applicable
requirements of the building, fire, electrical, plumbing, and
other such Uniform Codes adopted, as modified, by the City;
(2) A minimum of one toilet and wash basin shall be provided in
accordance with duly adopted City requirements;
(3) Cabinets or covered space shall be provided for the storage
of clean linen. Safe and sanitary receptacles shall be provided
for the storage of all soiled linen and paper towels;
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(4) Minimum ventilation shall be provided in accordance with the
applicable Building Codes of the City. To allow for adequate
ventilation in cubicles, rooms and areas provided for patrons'
use, which are not serviced directly by required windows or
mechanical systems of ventilation, partitions shall be
constructed so that the height of partition does not exceed
seventy-five (75) percent of the floor-to-ceiling height of the
area in which they are located;
(5) All plumbing and electrical installations shall be installed
under permit and inspection of the City's building inspection
department and such installations shall be installed in
accordance with the applicable provisions of the California
Building Code, California Plumbing Code, California Fire
Code and other applicable California or Uniform Codes as
adopted, with modifications, by the City;
(6) The walls in all rooms where water or steam baths are given
shall have a washable, mold-resistant surface;
(7) All lavatories or wash basins shall be provided with hot and
cold running water, soap, and single service towels in wall-
mounted dispensers;
(8) All massage establishments shall be provided with clean and
sanitary towels, sheets, and linens in sufficient quantity.
Towels, sheets, and linens shall not be used by more than one
person. Reuse of such linen is prohibited unless the same has
first been laundered. Heavy white paper may be substituted
for sheets, provided that such paper is used once for each
person and then discarded into a sanitary receptacle;
(9) All walls, ceilings, floors, pools, showers, bathtubs,
steamrooms and all other physical facilities including
appliances and apparatuses of the massage establishment
must be in good repair and maintained in a clean and sanitary
condition. Wet and dry heat rooms, steam or vapor rooms, or
steam or vapor cabinets, shower compartments, and toilet
rooms shall be thoroughly cleaned and disinfected after each
use;
(10) Disinfecting agents and sterilizing equipment shall be
provided for any instruments used in performing any type of
massage and said instruments shall be disinfected and
sterilized after each use;
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(11) Pads used on massage tables shall be covered with durable,
washable plastic or other accepted waterproof material;
(12) A sign that is in compliance with the sign requirements of City
ordinances shall be posted at the main entrance to the
premises identifying the establishment as a massage
establishment or a massage establishment that is in
compliance. All illuminated signs under operation by the
owner shall only be lit during hours of operation;
(13) No massage establishment shall be equipped with tinted or
one-way glass in any room or office;
(14) The storefront windows of the massage establishment shall
be transparent to provide clear visibility into the unit. The
windows shall not be obscured by curtains, blinds, or other
temporary devices during operating hours.
(15) The entrance shall be well lit at all times during hours of
operation.
(16) A sign containing the following written notice in minimum 72-
point font, shall be posted in a conspicuous place in the
reception area of the massage establishment and in each
room in which massage is-administered:
"This massage establishment and the massage rooms do not
provide complete privacy and are subject to inspection by City
and health officials without prior notice."
(b) Operations. All massage establishments shall comply with the
following operations requirements:
(1) There shall be no display, storage, or use of any instruments,
devices, or paraphernalia which are designed for use in
connection with "specified sexual activities" as defined in this
Code, including, but not limited to, vibrators, dildos, or
condoms, or any goods or items which are replicas of, or
which simulate, "specified anatomical areas" as defined in this
Code, on the premises of the massage establishment;
(2) Employees of the massage establishment and massage
therapists must conform to the dress code required by
California Business and Professions Code Section 4609 of
the California Massage Therapy Act, which prohibits dress in:
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(A) Attire that is transparent, see-through, or substantially
exposes the certificate holder's undergarment;
(B) Swim attire, if not providing a water-based massage
modality approved by the California Massage Therapy
Council;
(C) A manner that exposes the certificate holder's breasts,
buttocks, or genitals;
(D) A manner that constitutes a violation of California
Penal Code Section 314; or
(E) A manner that is otherwise deemed by the California
Massage Therapy Council to constitute unprofessional
attire based on the custom and practice of the
profession in California;
(3) No employee of the massage establishment or any massage
therapist shall expose any genitals, pubic regions, buttocks,
anuses, or female breasts below a point immediately above
the top of the areolae to the view of a customer or patron of
the massage establishment. All customers shall be
appropriately draped with a clean, opaque towel sufficient to
cover their genitals, pubic regions, buttocks, anuses, or
female breasts below a point immediately above the top of the
areolae while receiving such services;
(4) Each service offered, the price thereof, and the minimum
length of time such service shall be performed shall be posted
in a conspicuous public location in each massage
establishment. All letters and numbers shall be capitals not
less than one inch in height. No services shall be performed
and no sums shall be charged for such services other than
those posted. All arrangements for services to be performed
shall be made in a room in the massage establishment which
is not used for administration of massages, baths, or health
treatments, unless no other room exists in the massage
establishment;
(5) No massage establishment shall be kept open for business or
operated between the hours of 9:00 p.m. and 7:00 a.m.;
(6) No alcoholic beverages or controlled substances shall be
sold, served, furnished, kept, consumed, imbibed, or
possessed on the premises of any massage establishment;
(7) For new employees:
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(A) The applicant shall notify the City in writing of the within
ten (10) days prior to such employee commencing
work at the massage establishment of the new
employee's:
i. Name and contact information, including
residence address;
ii. License status under the California Massage
Therapy Act, and, if applicable, a copy of the
license;
iii. Proposed or actual nature of the work
performed or to be performed; and
iv. Recent passport-sized photograph for
identification purposes;
(B) All new employees, who are a massage therapists
licensed under the California Massage Therapy Act,
then the applicant shall provide a copy of the
employee's current massage therapist license shall,
upon request, demonstrate that a background check
was completed pursuant to California Business and
Professions Code Section 4060 of the California
Massage Therapy Act;.
(C) All new employees, who are not massage therapists
licensed under the California Massage Therapy Act,
shall, upon request, allow fingerprints to be taken for
the purpose of identification;
(8) The applicant or the applicant's designee shall be present on
the premises at all times the massage establishment is in
operation. The applicant shall file with the City the current and
valid name, home address, home phone number, and
alternate number where the person may be reached. The
applicant shall promptly file updated information with the City
when the aforementioned information changes.
Sec. 5-24.09. Management of massage establishments.
(a) The operator or a qualified manager of a massage establishment
shall be present on the premises at all times when the establishment
is open for business or in operation. The operator is at all times
responsible for the operation of the premises in compliance with the
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terms and conditions of this chapter, whether he or she is actually
present.
(b) The operator or designated manager shall be responsible for the
conduct of all employees or independent contractors while they are
on the establishment premises. In addition, the operator and any
designated manager shall be responsible for compliance with the
terms of this chapter and for receipt of any notices served or
delivered to the premises by the City. Any act or omission of any
employee or independent contractor constituting a violation of the
provisions of this chapter shall be deemed the act or omission of the
operator for purposes of determining whether the operator's
establishment license shall be revoked, suspended, denied or
renewed.
(c) Before any person may qualify to be designated as a manager, he or
she shall furnish the information required by this chapter to the
Orange County Sheriff's Department and shall pay the fee
established by the Sheriff's Department to verify the information
provided and perform such investigation as the Sheriff deems
appropriate. No person may qualify as a Manager if that person has
engaged in disqualifying conduct; has violated any provision of this
chapter, or any similar ordinance, law, rule, or regulation of any other
public agency which regulates the operation of massage
establishments; or, is less than eighteen (18) years of age. All
managers shall also certify in writing to the Orange County Sheriff's
Department that they have read this chapter and are familiar with the
provisions relating to the operation of massage establishments.
(d) Any person who holds a valid and current license as a massage
therapist under this chapter shall automatically qualify as a manager
and shall neither be required to furnish the information nor pay the
fee established in subsection (c) of this section; provided, however,
such person shall certify in writing to the Orange County Sheriff's
Department that he or she has read this chapter and is familiar with
the provisions relating to the operation of massage establishments.
(e) The operator shall file a statement with the Orange County Sheriff's
Department designating the person or persons with power to act as
a Manager. In addition, the operator or on-duty Manager shall post,
on a daily basis, the name of each on-duty Manager and each on-
duty therapist in a conspicuous public place in the lobby of the
massage establishment. The operator, or the Manager in the
operator's absence, shall be responsible for ensuring compliance
with this chapter.
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(f) The responsibilities of the operator or Manager established herein
cannot be delegated to, or undertaken by, any other person.
Sec. 5-24.10. Application to existing establishment.
Each owner or operator of a massage establishment legally doing business
on the effective date of this chapter shall, within one (1) year from the
effective date of this chapter, comply with all requirements of this chapter.
An owner or operator may request and the City Manager, at his or her
discretion, may grant an extension to this time period.
Sec. 5-24.11. Inspection by officials.
Any and all investigating officials of the City shall have the right to enter
establishments from time to time during regular business hours to make
reasonable inspections and to observe and enforce compliance with
building, fire, electrical, plumbing, or health regulations, and to ascertain
whether there is compliance with the provisions of this chapter.
Sec. 5-24.12. Business name and location change.
(a) No person licensed to operate a massage establishment shall
operate under any name or conduct business under any designation
not specified in the license.
(b) Prior to any change of location of a licensed massage establishment,
an application shall be made to the Chief Financial Officer, and such
application shall be granted within the time stated therein, provided
all applicable provisions of this chapter are complied with, and a
change of location fee in an amount established by City Council
resolution to defray the costs of investigation and report has been
paid to the City.
Sec. 5-24.13. Sale or transfer of massage establishment interest.
A sale or transfer of any interest in a massage establishment, which interest
would be reported as required in this chapter upon application for a
massage establishment license, shall be reported to the Chief Financial
Officer within thirty (30) days prior to the closing of the sale or transfer. The
Chief Financial Officer shall investigate any person receiving any interest in
a massage establishment as a result of such sale or transfer, and if such
person satisfies the requirements relating to massage establishment
license applicants, the existing license shall be endorsed to include such
person. A fee as set forth by resolution of the City Council shall be paid to
the City for the investigation for such sale or transfer.
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Sec. 5-24.14. Renewal of massage establishment license.
(a) Each massage establishment license shall expire at the end of the
calendar year unless renewed in accordance with this chapter.
(b) The licensee requesting renewal of its massage establishment
license shall file an application for renewal with the Chief Financial
Officer or his or her designee at least ninety (90) days prior to the
scheduled expiration of the license. The renewal application shall
provide all of the information required for an application for massage
establishment license, and shall also state that the licensee is
currently operating under a massage establishment license, the
location of the massage establishment, and the scheduled date for
expiration of the license for which the licensee is seeking renewal.
(c) Any application for renewal of a massage establishment license shall
be accompanied by a renewal fee in an amount established by
resolution of the City Council. The renewal fee shall be used to defray
the costs of investigation, report, and related application processing
issues.
(d) The Chief Financial Officer shall review the application and shall
either issue the renewed license or mail a written statement denying
the license and stating the reasons therefore.
Sec. 5-24.15. Massage therapist license required.
It shall be unlawful for any person to act as a massage therapist or perform
or administer a massage without a valid license issued pursuant to
California Massage Therapy Act.
Sec. 5-24.16. Application of massage therapist licensing
requirements to current masseuses.
Any person currently acting as a massage therapist or engaging in massage
activity under valid permit from the City shall, within one (1) year from the
effective date of this chapter, obtain the necessary license in order to
continue to engage in massage in the city. A person may request and the
City Manager, at his or her discretion, may grant an extension to this time
period.
Sec. 5-24.17. Appeals of denials of massage establishment
licenses.
(a) The Chief Financial Officer, or his or her designee, shall issue a
written determination citing the reasons for the denial with respect to
applications massage establishment licenses. The decision shall be
served upon the applicant when the review has been completed. The
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applicant shall have fifteen (15) calendar days to appeal the decision
by filing a notice of appeal with the City Clerk.
(b) The City Manager, or his designee, shall conduct an appeal hearing
on the appeal within twenty (20) business days of the filing of the
appeal. A written decision on the appeal shall be prepared citing the
reasons supporting the decision on the appeal. The decision shall be
final and binding. The appellant may thereafter seek judicial review
of any adverse decision pursuant to Code of Civil Procedure 1094.5.
Sec. 5-24.18. License suspension or revocation.
(a) Any license issued under this chapter may be revoked or suspended
as provided in this chapter where any of the grounds stated in this
section are determined to exist.
(b) At such time as the City has reason to believe that grounds exist to
revoke a license issued under this chapter, the Chief Financial
Officer, or designee, shall cause an investigation of the licensee
and/or massage establishment to be undertaken. If, based on the
result of the investigation, the Chief Financial Officer determines that
grounds to revoke the license are present, then the Chief Financial
Officer shall commence proceedings to revoke or suspend the
license by providing notice of the City's intent to revoke the license,
and by scheduling a date for the revocation hearing with the Chief
Financial Officer, which date shall not be less than thirty (30) days
from and after the date the notice of intent to revoke the license is
mailed.
(c) The occurrence of any of the following are grounds for revocation of
a license issued under this chapter:
(1) The licensee has violated any provisions of this chapter,
including, but not limited to, the requirement that the applicant
or the applicant's designee be present at the premises at all
times the massage establishment is in operation;
(2) The licensee has engaged in disqualifying conduct;
(3) The licensee has made a material misstatement in the
application for a license;
(4) The licensee has engaged in fraud, misrepresentation, or
false statement in conducting the massage establishment or
in performing massage services;
(5) The licensee has continued to operate the massage
establishment after the license has been suspended;
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(6) The licensee has failed to comply with one or more of the
facilities and operations requirements of Section 5-24.08 of
this chapter;
(7) The licensee has employed or otherwise allowed a person to
work as a massage therapist at the massage establishment
who:
(A) Does not have a valid license; or
(B) Has engaged in disqualifying conduct at the massage
establishment.
(d) Where it is determined that the grounds to revoke a license exist, the
City may suspend the license based upon a finding of mitigating
circumstances. Mitigating circumstances include, but are not limited
to, the following:
(1) The licensee has not been found to have engaged in
disqualifying conduct;
(2) The violation committed by the licensee does not present an
immediate threat or danger to the public health, safety, or
welfare;
(3) The licensee has not previously been cited for violations of
this chapter or violations of the code within the five (5) years
prior to the date of the hearing; and
(4) The licensee has agreed in writing to take specific measures
to cure or correct the violation with a period of not more than
fifteen (15) days.
(e) If a massage establishment license is revoked, then:
(1) The permittee may not apply for a permit for a massage
establishment under this title for two (2) years from the date
of revocation; and
(2) No massage establishment may be established at the same
location for two (2) years from the date of revocation.
Sec. 5-24.19. Notice of revocation or nonrenewal.
(a) Notice of the City's intent to revoke, or to not renew, a license shall
be provided in accordance with the provisions of this section.
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(b) Notice shall be delivered to the licensee, and other person(s)
designated on the license, at the address(es) designated in the
license by first class mail.
(c) The notice shall be in writing and shall contain all of the following:
(1) That the City intends to revoke or to not renew the license;
(2) The grounds for the revocation or nonrenewal;
(3) The date, time, and place of the revocation or nonrenewal
hearing;
(4) That the licensee may appear and present evidence in the
licensee's favor; and
(5) That the licensee's failure to appear may result in revocation
or nonrenewal of the license.
Sec. 5-24.20. Hearing for revocation or nonrenewal of massage
licenses.
(a) The Chief Financial Officer shall conduct a hearing within thirty (30)
days, or as soon as reasonably practicable thereafter, of the City's
mailing of the notices set forth in Sections 5-24.18 and 5-24.19 of
this chapter.
(b) The City shall have the initial burden of proof.
(c) Within ten (10) days of the conclusion of the hearing, the Chief
Financial Officer shall make a determination and to whether grounds
for revocation or nonrenewal exist, and shall prepare a written
decision, supported by written findings based on the evidence
submitted. A copy of such decision shall be forwarded by first class
mail to the licensee.
(d) The decision of the Chief Financial Officer shall be appealable to the
City Manager, or his designee, by the filing of a written appeal with
the City Clerk within fifteen (15) days following the day of mailing of
the decision. The City Manager, or his designee, shall conduct an
appeal hearing following the same procedure as conducted by the
Chief Financial Officer.
(e) At the conclusion of the hearing, the City Manager, or his designee,
shall issue a written determination within fifteen (15) calendar days
of the hearing citing the reason for his/her conclusions. The decision
shall be mailed by first class mail to the appellant. The decision of
the City Manager, or his appointed designee, shall be final and shall
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be subject to judicial review pursuant to Code of Civil Procedure
Section 1094.5.
Sec. 5-24.21. Violations declared a public nuisance.
In addition to the misdemeanor remedies provided for in this Code for
violations of this chapter, any violation of any provisions of this chapter is
declared to be a public nuisance and is subject to abatement as state law
may permit.
SECTION 3. All existing provisions of the Municipal Code that are repeated herein
are repeated only to aid decision-makers and the public in understanding the effect of the
proposed changes. Restatement of existing provisions does not constitute a new
enactment.
SECTION 4. If any provision of this Ordinance or its application to any person or
circumstance is held invalid, such invalidity has no effect on the other provisions or
applications of the Ordinance that can be given effect without the invalid provision or
application, and to this extent, the provisions of this Ordinance are severable. The City
Council declares that it would have adopted this Ordinance irrespective of the invalidity
of any portion thereof.
SECTION 5. This Ordinance shall take effect and be in force thirty (30) days after
its passage.
SECTION 6. The City Clerk shall certify to the adoption of this Ordinance and
cause the same to be posted at the duly designated posting places within the City and
published once within fifteen (15) days after passage and adoption as required by law;
or, in the alternative, the City Clerk may cause to be published a summary of this
Ordinance and a certified copy of the text of this Ordinance shall be posted in the Office
of the City Clerk five (5) days prior to the date of adoption of this Ordinance; and, within
fifteen (15) days after adoption, the City Clerk shall cause to be published the
aforementioned summary and shall post a certified copy of this Ordinance, together with
the vote for and against the same, in the Office of the City Clerk.
APPROVED AND ADOPTED at a regular meeting of the City Council of the City
of San Juan Capistrano this 1 sc day of May 2018,
SERGIO FARIAS, MAYOR
ATTEST
MARL RIS, C17CLEmv
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STATE OF CALIFORNIA )
COUNTY OF ORANGE )SS
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, appointed City Clerk of the City of San Juan Capistrano, do hereby
certify that the foregoing is a true and correct copy of Ordinance No. 1055 which was
regularly introduced and placed upon its first reading at the Regular Meeting of the City
Council on the 17th day of April 2018, and that thereafter, said Ordinance was duly
adopted nd passed at the Regular Meeting of the City Council on the 1St day of May
2018, by he following vote, to wit:
AYES: 41NCIL MEMBERS: Patterson, Ferguson, Reeve, Maryott and Mayor Farias
NOES NCIL MEMBERS: None
ABS.EN NCIL ME 6ERS: one
MA IA IS, CITY --7K
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, declare as follows:
That I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano;
That in compliance with State laws, Government Code section 36933(1) of the State of
California, on the 24th day of April 2018, at least 5 days prior to the adoption of the
ordinance, I caused to be posted a certified copy of the proposed ordinance entitled:
AN ORDINANCE OF THE CITY COUNCIL 0 THE SAN JUAN CAPISTRANO,
CALIFORNIA, AMENDING SAN JUAN C PISTRANO MUNICIPAL CODE
TITLE 5, PUBLIC WELFARE, CHAPTER 4 R ULATION OF MASSAGE
THERAPY, TO UPDATE THE CITY'S MA G REGULATIONS
This document was posted in the Office of the I rk
r
M '2'
A KRIS, CITY LERK
Sa C istrano, Califo is
24 01055
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, declare as follows:
That I am the duly appointed and qualified City Clerk of the City of San Juan Capistrano;
that in compliance with State laws, Government Code section 36933(1) of the State of
California.
On the 4th day of May 2018, 1 caused to be posted a certified copy of Ordinance No.
1055, adopted by the City Council on May 1, 2018, entitled:
AN ORDINANCE OF THE CITY COUNCIL • F THE SAN JUAN CAPISTRANO,
CALIFORNIA, AMENDING SAN JUAN APISTRANO MUNICIPAL CODE
TITLE 5, PUBLIC WELFARE, CHAPTEY24, GULATION OF MASSAGE
THERAPY, TO UPDATE THE CITY'S MREGULATIONS
r
This document was posted in the Office of the
MAtavapistrano,
RRIS, CITY C R
San Californi
25 01055