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Ordinance Number 785055 ORDINANCE NO. 785 AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, AMENDING THE SAN JUAN CAPISTRANO MUNICIPAL CODE TITLE 3, CHAPTER 1, ARTICLE 2, ENTITLED "TAXES", TITLE 5, CHAPTER 24, ENTITLED "REGULATION OF MASSAGE THERAPY", AND TITLE 9, CHAPTER 3, ARTICLE 4, ENTITLED "BASE DISTRICT REGULATIONS" WITH RESPECT TO THE REGULATION OF MASSAGE PRACTITIONERS THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: 1. Title 3, Chapter 1, Article 2, Section 3-1.202 of the Municipal Code, entitled "Business and professions" requires businesses in the City to secure a valid business license prior to operating a commercial business enterprise within the City, including masseuses, masseurs, and massage therapists, and requires no additional discretionary review. 2. Title 5, Chapter 24 of the Municipal Code, entitled "Regulation of Massage Therapy" establishes definitions related to the regulation of masseuses, masseurs, and massage therapists. 3. Title 9, Chapter 3, Article 1 of the Municipal Code, entitled "Establishment of Districts: Official Zoning Map" does not contain provisions which regulate the location of massage practitioner uses and structures. 4. The City has recently experienced significant growth in the total number of business licenses issued to masseuses, masseurs, and massage therapists within the City and the Orange County Sheriffs Department crime records reveal that in certain cases, individuals operating as masseuses, masseurs, and massage therapists have violated criminal statutes with respect to unlawful activities. 5. Government Code Section 65850 grants the City police power authority to regulate land use activities including massage practitioners, in order to protect and preserve the public health, interest, and general welfare. 6. On February 6, 1996, the City Council adopted an urgency ordinance establishing a forty-five (45) day moratorium on the issuance of new business licenses for masseuses, masseurs, and massage therapists and on March 5, 1996, adopted an extension of the -1- Ubb urgency ordinance establishing a ten (10) month extension of the moratorium on the issuance of business licenses to masseuses, masseurs, and massage therapists. 7. The City Council has directed City staff to prepare draft Ordinance amendments. 8. The Environmental Administrator has reviewed the project pursuant to Section 15070 of the California Environmental Quality Act and issued a negative declaration and has otherwise complied with all applicable provisions of the California Environmental Quality Act. 9. The Planning Commission conducted a duly -noticed public hearing on October 22,1996, pursuant to Section 9-2.313 of the Municipal Code to consider testimony on the proposed project. 10. The City Council conducted a duly -noticed public hearing on November 19, 1996, pursuant to Section 9-2.313 of the Municipal Code. Based upon the findings set forth in Section 1, preceding, the following amendments to the Municipal Code are hereby enacted: Sections 3-1.202(c) through 3-1.202(k) are amended in their entirety as follows: "(c) Classification "C": Special business licenses. Classification "C" licenses include all businesses and persons involving massage -related services, including those set forth in this subsection, and shall pay an annual license tax as determined by City Council fee resolution. Classification "C": Special business licenses, shall be required for each person offering services as defined by Section 5-24.01(c) of the Municipal Code: (1) Massage therapists. (2) Massage technicians. (d) Requirements for Class "C": Special business licenses. All applicants and applications for Class "C": Special business licenses, shall comply with the following standards: (1) License Authority. The City Manager shall designate that position which will serve as the business license administrator who shall have responsibility for processing and authority over issuance of Class "C": Special business licenses. (2) License Application. The City shall maintain application forms for public convenience and efficient administration of this Title. Applicants for a Class "C": Special -2- IINFA business license, shall submit the following information in order to constitute a complete application: (i) A completed City business license application. (ii) A copy of the relevant school transcripts and verifiable work record of the applicant including business name, supervisor's name, address, phone number, description of duties, beginning month and year, and ending month and year. (iii) A completed fingerprint card of the applicant prepared by the Orange County Sheriff's Department (iv) Annual business license tax and application processing fees, in order to defray the reasonable costs of application processing including, but not limited to, fingerprint processing, background checks, and staff time. (3) Decision-making authority. The business license administrator shall have authority to approve or deny any application for Class "C", Special business licenses. Decisions of the business license administrator may be appealed pursuant to Section 3-1.202d(8), Appeals, of these regulations. In cases where the administrator denies issuance of a business license, the denial shall be based on one or more of the following findings: (i) The application does not comply with the specific requirements of this Title, or Title 5, Chapter 24, Regulation of Massage Therapy, or Title 9, Chapter 3, Article 1, Establishment of Districts: Official Zoning Map; and/or, (ii) The applicant has submitted false or misleading statements or has submitted falsified information or certificates as part of the license application; and/or, (iii) The applicant has been convicted of any felony under the laws of the State of California; or has been convicted of any offense of law in another state of the United States which California classified as a felony; or has pleaded no contest to felony charges in the State of California; or has pleaded no contest to any offense of law in another state of the United States which California classifies as a felony; and/or, (iv) The applicant has been convicted of any crime in violation of California Penal Code Sections 647(a), 647(b), or 647(d), as amended. (4) Process for Classification "C": Special business licenses. Prior to issuance of a Class "C", Special business license, the business license administrator shall refer completed business license applications and supporting documentation to that agency designated by the City to conduct background checks. The extent of the background check shall be established by administrative policy. The purpose of the background check shall be to determine compliance with subsections (2)(ii), (3)(ii), (3)(iii) and (3)(iv) of this section. -3- m (5) Inspection of premises. All business license permittees shall allow the business license administrator or designated City staff to inspect the business premises at any time for compliance with the provisions of this title, or Title 5, Chapter 24, Regulation of Massage Therapy, or Title 90, Chapter 3, Article 1, Establishment of districts: Official Zoning Map. Failure of the business license permittee or their employees to allow inspection by City staff shall be grounds for revocation of the business license. (6) Suspension and Revocation Authority. Subsequent to business license issuance, the City shall have the authority to initiate suspension or revocation proceedings and may suspend or revoke any Classification "C": Special business license for one or more of the following reasons: (i) The business conducted on the premises is not substantially similar to that for which the business license was approved and issued; and/or, (ii) The business does not comply with the specific requirements of this title, or Title 5, Chapter 24, Regulation of Massage Therapy, or Title 9, Chapter 3, Article 1, Establishment of Districts: Official Zoning Map; and/or, (iii) The business licensee submitted false or misleading statements or has submitted falsified information or certificates as part of the license application; and/or, (iv) The business licensee or employee has been convicted of any felony under the laws of the State of California; or has been convicted of any offense of law in another state of the United States which California classifies as a felony; or has pleaded no contest to felony charges in the State of California; or has pleaded no contest to any offense of law in another state of the United States which California classifies as a felony; and/or, (v) The business licensee or an employee has been convicted of any crime in violation of California Penal Code Sections 647(a) 647(b), or 647(d), as amended. (7) Revocation Process. Upon a determination by the City that a Classification "C": Special business license permittee has violated the provisions of subsection (6) of this section, the business license administrator shall schedule a suspension or revocation hearing before the Business License Hearing Officer as designated by the City Manager. The City shall provide notice to the business license permittee of the time, date, and location of the revocation hearing. The City shall provide the business license permittee with the opportunity to show cause as to why the City should not suspend or revoke the business license. The Business License Hearing Officer shall have suspension and revocation authority and action to revoke any business license shall be made in writing and shall be posted within five (5) days following the administrative hearing. (8) Appeals. Decisions of the Business License Hearing Officer to deny, suspend, or revoke a license may be appealed to the City Manager by filing a written notice of appeal with the City Clerk no later than fifteen (15) days after the date of the written decision. K's ;1IM The written decision shall specifically state the factual and legal basis of the appeal, and the basis for any decision to deny, suspend or revoke the business license. Within ten (10) days of filing, the City Clerk shall schedule the appeal for consideration by the City Manager who shall conduct an appeal hearing within thirty (30) days of filing. The City shall notify the appellant and licensee in writing of the date, time, and location of the hearing. The City Manager shall notify.the appellant of his decision, in writing, within ten (10) days. The appellant or licensee may seek prompt judicial review of the administrative appeal action pursuant to California Code of Civil Procedure Section 1094.5." Title 5, Chapter 24 is amended in its entirety to read as follows: Chapter 24 , Regulation of Massage Therapy Section 5-24.01. Purpose and Intent. The purpose and intent of this ordinance shall be to regulate the operation of massage practitioners, massage therapists, and massage technicians in order to protect the public health, safety and welfare. Section 5-24.02. Definitions. The following definitions shall apply to the administration of this Chapter. (a) "Massage" means any method of treating the external body for the purpose of stress reduction, therapeutic healing, improved circulation, or related purpose which consists of rubbing, stroking, kneading, adjusting, or taping with the hand(s) or instrument(s), including but not limited to acupressure, amma, massotherapy, reflexology, rolfing, shiatsu, sports massage, Swedish massage, and related massage modalities. (b) "Massage therapy" means any business or service which employs massage therapists and/or massage technicians and renders services as defined under the term "massage." (c) "Accessory massage therapy" means any business or service which employs massage therapists and/or massage technicians and renders services as defined under the term "massage% provided however, that such service is conducted under the direct supervision of a person holding a Classification "B", Professions business license (medically related). (d) "Outcall massage therapy" means any massage therapist licensed by the City who renders services as defined under the term "massage," and involves provision of the service at the client's residence, place of employment, or other client location. Licensed massage therapists who provide "outcall massage therapy" service, may reside within or outside the City, or conduct business from a permanent business location within or outside the City, provided -5- KIN1 however, that permanent business locations in the City shall comply with Title 9, Land Use Code. Massage technicians may not provide "outcall massage therapy." (e) "Massage technician" means any person who practice(s massage as defined in subsection (a), meets the requisite training standards, and has been issued a Classification" -C" , Special business license as defined in Section 3-1.202(c) of the Municipal Code, provided however, that massage technicians shall be required to work under the direct supervision of a licensed massage therapist or under the direct supervision of a person holding a "Classification "B", Professions business license (medically related) as defined in Section 3-1.202(b) of the Municipal Code. (f) "Massage therapist" means any person who practice massage as defined in subsection (a), meets the requisite training standards, and has been issued a Classification "C", Special business license as defined in Section 3-1.202(c) of the Municipal Code, except those persons who are licensed under a"Classification"B", Professions business license (medically related) as defined in Section 3-1.202(b) of the Municipal Code. (g) "Recognized School of Massage" means any school or institution: (i) Certified by the State of California Council on Private, Post Secondary Education, which offers a course of study in massage as defined in subsection (a); and, (ii) Approved, recognized, and/or accredited by the Commission on Massage Training Accreditation & Approval (COMTAA); or, the International Massage and Somatic Therapies Accreditation Council (IMSTAC); or the Accredited Career Schools and Colleges of Technology (ACCSCT); or, the International Myomassethics Federation (IMF); or, the Accrediting Council for Continuing Education and Training (ACCET); or, has been reviewed by the City to determine compliance with appropriate education and curriculum standards established by Administrative Policy, and has been placed on the City's "List of Recognized Schools of Massage. " Section 5-24.03. Standards. The following standards shall apply to massage technicians and massage therapists: (a) Training standards. (i) Massage technicians. Massage Technicians shall have completed a resident course of study from a recognized school of massage with a minimum of two hundred (200) hours of training to be given in not less than three (3) months. (ii) Massage Therapists. Massage therapists shall have completed a resident course of study from a recognized school of massage with a minimum of five hundred (500) hours of training to be given in not less than six (6) months; or a minimum of two hundred am [Ir.Til (200) hours of training to be given in not less than i'iree (3) months and one (1) year of experience employed as a massage practitioner; or, a minimum of two hundred (200) hours of training to be given in not less than three (3) months and a combination of supplemental training and experience equivalent to three hundred (300) hours of training at the rate of one (1) month of experience employed as a massage practitioner being equivalent to twenty-five (25) hours of study from a recognized school of massage. (b) Maintenance of premises. All massage therapy businesses, with the exception of outcall massage therapy, shall comply with the following standards: (i) Businesses shall maintain a seating/reception area with information on the types of massage treatments available. (ii) Businesses shall prominently display the City business license, and all educational and training certificates of massage therapists and technicians employed on the premises in the reception area." Title 9, Chapter 3, Article 4, Section 9-3.414(c) is amended to add the following subsection: "(4) accessory massage therapy (as defined in Section 5-24.02(b) of the Municipal Code. " Title 9, Chapter 3, Article 4, Section 9-3.414(d) is amended to add the following subsection: "(19) massage therapy (as defined in Section 5-24.02(b) of the Municipal Code." Massage practitioners presently holding a valid Class "C", Special business license within the City shall be considered legal, non -conforming and shall not be required to comply, at the time of annual business license renewal, with the standards established by Section 5- 24.03(a), Training Standards of this Ordinance. All other provisions of this Ordinance shall apply to all presently -licensed massage practitioners as well as persons seeking a new Class "C" license for massage technicians, or massage therapist. Furthermore, existing massage therapy businesses shall be considered legal non- conforming uses pursuant to Title 9, Chapter 1, Article 3, Non -conforming Uses, Lots and Structures, and shall not be required to secure a conditional use permit for massage therapy uses pursuant to Section 9-3.414(d)(19) unless the non -conforming use is discontinued for any period of time, as evidenced by the expiration of all valid Class "C" business licenses at the non- conforming business location. -7- This Ordinance shall take effect and be in force thirty (30) days after its passage. SECTION 5. City Clerk's Certification. 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. PASSED, December ATTEST: APPROVED AND ADOPTED this 3rd day of 1996. MAYOR R:11 063 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss CITY OF SAN JUAN CAPISTRANO ) I, CHERYL JOHNSON, City Clerk of the City of San Juan Capistrno, California, DO HEREBY CERTIFY that the foregoing is a true and correct copy of Ordinance No. 785 which was introduced at a meeting of the City Council of the City of San Juan Capistrano, California, held on November 19. , 1996, and adopted at a meeting held on December 3, , 1996, by the following vote: AYES: Council Members Campbell, Jones, Nash Swerdlin and Mayor Hart NOES: None ABSTAIN: None ABSENT: None In