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21-0615_MISSION VIEJO, CITY OF_Agenda Report_E9City of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City Council FROM: Benjamin Siegel, City Manager SUBMITTED BY: Maria Morris, City Clerk DATE: June 15, 2021 SUBJECT: Adoption of an Ordinance Amending the City’s Massage Therapy License Regulations RECOMMENDATION: Approve the second reading and adoption of an ordinance entitled “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF 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.” EXECUTIVE SUMMARY: On June 1, 2021, the City Council approved the first reading and introduction of an ordinance amending the City’s massage therapy license regulations. The ordinance will go into effect 30 days after passage. DISCUSSION/ANALYSIS: Not applicable. FISCAL IMPACT: Not applicable. ENVIRONMENTAL IMPACT: Not applicable. PRIOR CITY COUNCIL REVIEW: •On June 1, 2021, the City Council approved the first reading and introduction of an ordinance amending the City’s massage therapy license regulations. 6/15/2021 E9 City Council Agenda Report June 15, 2021 Page 2 of 2 COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: Not applicable. NOTIFICATION: The City Clerk’s office will provide all necessary publications and posting of the Ordinance as required by law. ATTACHMENT(S): Attachment 1 – Draft Ordinance 1 O 1089 ORDINANCE NO. 1089 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 further ensure public safety; 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; 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: The recitals above are each incorporated by reference and adopted as findings by the City Council. San Juan Capistrano Municipal Code Title 5, Public Welfare, Chapter 24, Regulation of Massage Therapy, is hereby amended as follows: ATTACHMENT 1 2 O 1089 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. 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. 3 O 1089 (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 236.1, 266(h), 266(1), 315, 316, 318, 647(a), 647(b), 653.22, or 653.23 (D) Any crime specified in Government Code Section 51032; (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 236.1, 266(h), 266(1), 315, 316, 318, 647(a), 647(b), 653.22 or 653.23 or Government Code Section 51032. 4 O 1089 (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 certification, license or permit issued by any State, County, City, or other local government or certification organization recognized pursuant to State Law, 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, or the sole basis for the denial of massage certification was due to inadequate education. (7) The business license administrator shall deny an initial application for a massage establishment license or an application for renewal of a massage establishment license if the business administrator finds in writing: (A) That the applicant, massage establishment licensee, responsible person and/or owners of the massage business, have engaged in unlawful activity, or been convicted of any of the following offenses or convicted of an offense outside the state that would have constituted any of the following offenses if committed within the state; (B) That the applicant/responsible person, owners and/or employees of the massage business have engaged in unprofessional conduct, including but not limited to, personal conduct or operation of a business resulting in denial of a license, revocation, suspension, restriction, or any other disciplinary action taken against an applicant, licensee, responsible person, 5 O 1089 owner and/or employee by the city, by another state, by any other governmental agency, or by the California Massage Therapy Council. (8) 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. (9) 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; 6 O 1089 (5) Holistic therapy; (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. (l) “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 while performing activities encompassed by such professional licenses; (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, 7 O 1089 or bona fide employees thereof, while performing activities within the scope of their 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. 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 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. 8 O 1089 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) Applicant must provide all names, aliases and fictitious names used in the past ten (10) years; (3) Written proof that the applicant is at least eighteen (18) years of age; (4) 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, County, City or other local government or certification organization recognized pursuant to State law, within the United States, under a permit or license, has had such permit or license denied, revoked, suspended or is currently under investigation and the reasons therefore; and the business, activity or occupation the license applicant engaged in subsequent to such action of revocation or suspension, unless the sole basis for the denial of massage certification was due to inadequate education; (5) 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 9 O 1089 Sections 11570 through 11587 or any similar provisions of law in a jurisdiction outside the State of California; (6) Applicant’s height, weight, and color of eyes and hair; (7) Two (2) prints of a recent passport-size photograph of applicant; (8) Business, occupation, or employment history of the applicant of the five (5) years immediately preceding the date of the application; (9) 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; (10) 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 ; (11) The application shall not be deemed complete until: (A) The applicant has furnished clear, legible, and classifiable fingerprints to the City for the purpose of 10 O 1089 establishing identification, unless the applicant has license in good standing with the California Massage Therapy Council indicating no reported convictions; (B) All other employees, who are not massage therapists licensed under the California Massage Therapy Act, have provided the results of a Live Scan fingerprinting or background check service from a City designated facility within 30 days, directly to the City for the purpose of establishing identification; (12) Such other information as may reasonably be deemed necessary by the City Manager to investigate the accuracy and veracity of the information required in the application; (13) 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; (14) 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; (15) 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; (16) 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; (17) Acknowledgement in the application that the appointment of a Manager by the applicant constitutes consent by the applicant for assumption of responsibility for all acts and conducts of the manager, including service of notices by the city; (18) A sketch or diagram showing the complete interior configuration of the business, including without limitation the location of the restrooms, massage rooms, customer areas, 11 O 1089 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; (19) The Orange County Sheriff’s Department shall review all establishment license application materials and report its findings as appropriate to the City; (20) City is authorized to collect from applicant reimbursement cost of any processing fees, such as fingerprinting and background check services and the cost of review services provided by the Orange County Sheriff’s Department, in addition to the amount of the application processing fee established by resolution of the City Council; (21) Orange County is authorized to collect any processing or associated cost. 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: 12 O 1089 (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 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; 13 O 1089 (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; (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 14 O 1089 massage and said instruments shall be disinfected and sterilized after each use; (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) Anti-Human Trafficking Notice. The notice developed by the Department of Justice and found at https://oag.ca.gov/human- trafficking/model-notice, of a size no smaller than eight and one-half inches by 11 inches in size, shall be posted in English, Spanish, and Vietnamese in the customer waiting room so as to be visible to all people entering the establishment, as well as in the employee break room and every private massage room. (14) No massage establishment shall be equipped with tinted or one-way glass in any room or office; (15) Locking doors are prohibited for any interior rooms where permitted massage services are rendered. No changing rooms or other types of rooms designed for privacy, if provided, shall be used to render massage services. In the context of this section, "locking doors" shall mean any type of device, temporary or permanent, living or otherwise, which restricts, prohibits, or slows entry into a room, or provides advanced notice of entry. Signs that state a massage is in progress are permitted. (16) 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. (17) The entrance shall be well lit at all times during hours of operation. (18) All clients shall enter and exit through the front door of the business. The front door shall face the street or, if no street- facing door exists, the door that is most visible from the customer-oriented and publicly-accessible area of the 15 O 1089 property. No entrance to any massage business shall be provided or permitted adjacent to any service/delivery area, City alley, utility/maintenance area, or, in the case of multi- tenant buildings or commercial centers, directly accessible to covered parking areas that are not directly accessible by other tenant suites visible from the massage business's entry. "Directly accessible" in the context of this section means public access to a business which occurs without passage through a common entryway, hall, staircase, courtyard, or corridor that provides the main public access to multiple tenant suites in the building or commercial center. (19) A sign containing the following written notice in minimum 36- 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) Establishment shall keep a record of each appointment; date, time, name as it appears on state issued identification card, and address, establishment must provide a sign on counter stating that “A record of all appointments is kept for all appointments. A state issued identification card must be present at appointment to verify identification.”; (3) 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: (A) Attire that is transparent, see-through, or substantially exposes the certificate holder's undergarment; 16 O 1089 (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; (4) 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, midriff, upper thigh, or female breasts below a point immediately above the top of the areolae while receiving such services; (5) 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; (6) No massage establishment shall be kept open for business or operated between the hours of 9:00 p.m. and 7:00 a.m.; (7) No alcoholic beverages or controlled substances shall be sold, served, furnished, kept, consumed, imbibed, or possessed on the premises of any massage establishment; (8) For new employees: (A) The applicant shall notify the City in writing of the within ten (10) days prior to such employee commencing 17 O 1089 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 valid California Massage Therapy Council license and 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; (c) 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 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 18 O 1089 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) In approving a Massage Establishment License to establish a massage use, the reviewing authority may impose conditions (e.g., security and safety measures, light, noise buffers, parking, etc.) on the use to ensure that it operates in a manner that provides adequate protection to the public health, safety, and general welfare. (d) Before any person may qualify to be designated as a manager, he or she shall furnish the information required by this chapter to the City or its designee and shall pay the fee established by the City to verify the information provided and perform such investigation as the City 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 City that they have read this chapter and are familiar with the provisions relating to the operation of massage establishments. (1) City shall be notified of any management changes within thirty (30) days of the change. (e) 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 (d) of this section; provided, however, such person shall certify in writing to the City that he or she has read this chapter and is familiar with the provisions relating to the operation of massage establishments. (f) The operator shall file a statement with the City 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. 19 O 1089 (g) 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. Sec. 5-24.14. Renewal of massage establishment license. 20 O 1089 (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 any changes in the information previously provided to the City. (c) Renewal application shall include a list of all employees, a copy of the employees’ California Massage Therapy Council license or if the employee is not a licensed masseuse, a Live Scan fingerprinting or background check service from a City designated facility within 30 days of the application. (d) 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. In addition to the amount of the renewal fee established by resolution of the City Council, the applicant shall pay for any Live Scan fees incurred by the City to process the application. (e) 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. (f) The Orange County Sheriff’s Department shall review all establishment license application materials and report its findings as appropriate to the City. 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. 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 applicant shall have fifteen (15) calendar days to appeal the decision by filing a notice of appeal with the City Clerk. 21 O 1089 (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. 5-24.17. 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; (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; 22 O 1089 (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 five (5) years from the date of revocation; (2) No massage establishment may be established anywhere on the property (i.e., business center) upon which a massage establishment with a revoked license was located for five (5) years from the date of revocation; (3) Revocation of establishment license shall apply to all other massage locations affiliated with owner of the establishment; and (4) During revocation, abatement or business closure activities, Police Services or designee shall contact the Orange County Trafficking Task Force as the first source of support to provide a social worker and interpreter for potential victims of human trafficking. 23 O 1089 Sec. 5-24.18. 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. (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 and served upon the location by the City’s Police Department. (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. 5-24.19. 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. 24 O 1089 (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 be subject to judicial review pursuant to Code of Civil Procedure Section 1094.5. Sec. 5-24.20. Violations punishable as misdemeanor Violations of this chapter shall be misdemeanors punishable by fines, imprisonment or fees, or any combination thereof. 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. 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. 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. This Ordinance shall take effect and be in force thirty (30) days after its passage. 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. 25 O 1089 APPROVED AND ADOPTED at a regular meeting of the City Council of the City of San Juan Capistrano this 15th day of June 2021. _________________________ JOHN TAYLOR, MAYOR ATTEST: _________________________ MARIA MORRIS, CITY CLERK