Ordinance Number 908_ ORDINANCE NO. 908
AN ORDINANCE OF THE CITY OF SAN JUAN CAPISTRANO,
CALIFORNIA, AMENDING CHAPTER 24 'REGULATION OF MASSAGE
THERAPY", OF TITLE 5 'PUBLIC WELFARE" OF THE MUNICIPAL
CODE
THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA,
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. CODE AMENDMENT.
1. Chapter 24, 'Regulation of Massage Therapy", of Title 5 , `Public Welfare",
of the Municipal Code is hereby amended in its entirety to read as follows:
"CHAPTER 24.
MASSAGE REGULATIONS
Section 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. In
this regard, the Chief of Police Services has advised the City Council that certain
massage establishments and chiropractic offices have fronted as places of
prostitution requiring police enforcement activity in the last three years which has
successfully closed down such operations in a half dozen cases.
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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. "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.
B. "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 non -renewal, 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;
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. —
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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, non -renewal, 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.
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 white 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.
C. "Manager" means a person who has been designated by an operator to be
responsible for the operation of a licensed massage establishment.
D. "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.
E. "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
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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;
6. Hydro therapy;
7. Public bath;
8. Sauna;
9. Sports massage;
10. Stress management center;
11. Toxic herbal massage; or
12. Massage parlor.
F. "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.
G. "National Certification Board for Therapeutic Massage and Bodywork" or "NCBTMB"
means The National Certification Board for Therapeutic Massage and Bodywork,
which is a not-for-profit organization accredited by the National Commission for
Certifying Agencies having its principle offices located at 8201 Greensboro Drive,
Suite 300, McLean, VA 22102.
H. "National Certification Examination for Therapeutic Massage and Bodywork" or
"NCE" means the National Certification Examination for Therapeutic Massage and
Bodywork developed and administered by the NCBTMB.
I. "Operator' means a person who has been issued a license to operate a massage
establishment. —
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J. 'Person" means any individual, firm, association, partnership, corporation, joint
venture, limited liability company, or combination of individuals.
K. "Recognized school of massage' means any school or institution of learning which
teaches the theory, ethics, practice, profession and work of massage, which school
or institution of learning requires a residence course of study of not fewer than five -
hundred (500) hours to be given in no less than six (6) calendar months before the
student shall be furnished with a diploma or certificate of graduation from such
school or institution of learning following the successful completion of such course of
study or learning, and which school has been approved by the State of California,
Dept. of Consumer Affairs — Bureau of Private Postsecondary and Vocational
Education, pursuant to California Education Code Section 94915 or, if said school is
not located in California, has complied with standards commensurate with those
required by this section and has obtained certification under any similar state
certification program, if such exists. Any school of institution of learning offering or
allowing correspondence course credit not requiring actual attendance at class, or
courses of a massage therapist not approved by the California Department of
Consumer Affairs-BPPVE shall not be deemed a "recognized school of massage."
L. "State or national organization devoted to the massage specialty and therapeutic
approach" means an organization which the City Manager or designee determines
meets each of the following requirements:
The organization or association requires that its members meet minimum
educational requirements. The educational requirements must include at least
five -hundred (500) classroom hours or its equivalent in anatomy, physiology,
hygiene, sanitation, massage practice, and ethics or massage practice;
2. The organization or association requires participation in continuing education
programs as a condition of continuing membership;
3. The organization or association has established rules of ethics and has
enforcement procedures for the suspension and revocation of membership of
persons violating the rules of ethics;
4. The organization is open to members of the general public meeting the
requirements for membership on either a statewide or national basis and, in fact,
maintains a membership which reflects substantial statewide or national
participation by persons engaged in the business of therapeutic massage.
Sec. 5-24.03. Exemptions, Certificate of Exemption, and Exceptions.
A. Exemption. Pursuant to Government Code section 51033, this chapter shall not
apply to the following classes of individuals:
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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 Division 2 of the Business and Professions Code;
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, or
bona fide employees thereof, while performing activities encompassed by such
professional I icenses.
B. Certificate of Exemption. No person shall operate a massage establishment or
perform the activities of a massage therapist under the above stated exemption
status without first applying for and receiving approval of a Certificate of Exemption
from the Administrative Services Director, or his/her designee.
A person claiming an exemption has the burden of establishing that he/she qualifies
for the exemption proving that such person is a member of the healing arts or is
otherwise bona fide employee of a person licensed to practice the healing arts. An
employee claiming the exemption shall prove employment status by providing
payroll evidence. Such evidence shall be provided to authorized city representatives
at the time of the Application for certificate of exemption process. Submission of
quarterly estimates, or W-2 forms, may be required for the person to claim the
exemption. Such information shall be used only for licensing purposes.
The City Manager or the Orange County Sheriffs Department may request such
other information as may reasonably be deemed necessary to investigate the
accuracy and veracity of the information required in the certificate of exemption.
C. Exceptions. Individuals administering massages or health treatments involving
massage to persons participating in road races, track meets, triathlons, and similar
athletic or recreational events shall be exempt from the provisions of this Chapter,
provided, that all of the following conditions are met:
1. The massage services are made equally available to all participants in the event;
2. The event is open to participation by the general public or a significant segment
of the public such as employees of sponsoring or participating corporations,
students from the participating schools, members of participating organizations,
etc;
3. The massage services are provided at the site of the event and either during, —
immediately preceding, or immediately following the event;
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4. The sponsors of the event have been advised of and have approved the
provision of massage services; and
5. The persons providing the massage services are not the primary sponsors of the
event
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. Each massage therapist shall display his or her license
issued under this chapter in an open and conspicuous place at the premises where the
massage is being performed.
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.
Sec. 5-24.06. Application for massage establishment license.
A. A completed application for a massage establishment license shall be filed with the
Administrative Services Director, or his/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;
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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; 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;
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 names and residence addresses of all persons currently employed or
intended to be employed in the massage establishment, regardless of the nature
of employment, including the names and addresses of any person licensed
herein [Massage therapist license required] along with the proposed or actual
nature of the work performed or to be performed, and recent passport -sized
photographs, suitable for the City Manager to process the application of each
such employee. "Employee' includes every owner, partner, manager,
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supervisor, and worker, whether paid or not, who renders personal services of
any nature in the operation of a massage establishment;
10.The application shall not be deemed complete until the applicant and all of the
aforesaid employees have furnished clear, legible, and classifiable fingerprints,
as reasonably determined by the Orange County Sheriffs 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 Sheriffs
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 for assumption of responsibility for
all acts and conduct of the manager, including service of notices by the city.
Sec. 5-24.07. Grounds for denial of massage establishment license.
A. Within seventy-five (75) days following receipt of a completed application, the
Administrative Services Director, or his/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.
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B. The Administrative Services Director may continue his/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 Director's request within the time required for the Director to complete
his/her review of the completed application, or in the event that additional time is
necessary to complete the identification or re -fingerprinting of the applicant or
persons to be employed by the massage establishment. In the event the Director
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 Director shall deny a license to the license applicant where any of the following
conditions exist:
The applicant has made one (1) or more material misstatements in the
completed application for a license; or,
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; or,
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; or,
4. The applicant or any persons to be employed at the massage establishment are
persons who have engaged in disqualifying conduct; or,
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.
Sec. 5-24.08. Massage establishment facilities and operations requirements.
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All massage establishments shall comply with the following facilities and operations
requirements:
A. 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;
B. A minimum of one (1) toilet and wash basin shall be provided in accordance with
duly adopted City requirements;
C. 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;
D. 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;
E. 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;
F. The walls in all rooms where water or steam baths are given shall have a washable,
mold -resistant surface;
G. All lavatories or wash basins shall be provided with hot and cold running water,
soap, and single service towels in wall -mounted dispensers;
H. 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 (1) 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;
I. 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;
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J. 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;
K. Pads used on massage tables shall be covered with durable, washable plastic or
other accepted waterproof material;
L. 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;
M. To assure patrons' health, safety, sanitation, and comfort, all employees and
massage therapists shall be clean and dressed appropriately in clean, opaque
clothing which does not expose the genitals, pubic regions, buttocks, anuses, or
female breasts below a point immediately above the top of the areolae when
performing services upon the premises. "Dressed appropriately" shall further mean
clothing which, at a minimum, shall not expose the employee's, or massage
therapist's undergarments or bare midriff, and shall comply with the following
requirements, as applicable:
1. Upper Garments. All garments covering the upper torso (e.g., shirts and
dresses) shall have sleeves not less than two (2) inches in length, measuring
from the top of the shoulder, and necklines no lower than two (2) inches below
the clavicle;
2. Skirts. Hems of dresses, skirts, smocks, or other similar garments shall not be
more than two (2) inches above the top of the knee;
3. Shorts. Cuffs or hems of shorts, culottes, pants or other similar garments shall
not be more than six (6) inches above the top of the knee;
N. 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;
O. 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 (1) inch in
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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;
P. No massage establishment shall be kept open for business or operated between the
hours of 9:00 p.m. and 7:00 a.m.;
Q. No alcoholic beverages or controlled substances shall be sold, served, furnished,
kept, consumed, imbibed, or possessed on the premises of any massage
establishment;
R. 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 parlor that is in compliance;
S. The applicant shall notify the City in writing of the names, addresses, and nature of
work of any new employees, within ten (10) days prior to such employee
commencing work at the massage establishment, and supply required photographs.
If the new employee is to perform massage, then the applicant shall provide a copy
of the employee's current massage therapist license. Such new employees shall
allow fingerprints to be taken for the purpose or identification upon request.
"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;
T. 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 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
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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/she shall furnish
the information required by this chapter to the Orange County Sheriffs Department
and shall pay the fee established by the Sheriffs 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 Sheriffs 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); provided,
however, such person shall certify in writing to the Orange County Sheriffs
Department that he/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 Sheriffs 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.
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 apply for a massage establishment license not later
than one (1) year from the date of a written notice delivered to the owner or operator by
certified mail, postage prepaid, by the City and shall comply with all licensing
requirements of this chapter.
Sec. 5-24.11. Inspection by officials.
Any and all investigating officials of the City shall have the right to enter massage
establishments from time to time during regular business hours to make reasonable
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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.
No person licensed to operate a massage establishment shall operate under any name
or conduct business under any designation not specified in the license.
Prior to any change of location of a licensed massage establishment, an application
shall be made to the Administrative Services Director, 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 Administrative Services Director within thirty (30) days
prior to the closing of the sale or transfer. The Director 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.
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 Administrative Services Director or his/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 a 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
15 08-02-2005
Council. The renewal fee shall be used to defray the costs of investigation, report, _
and related application processing issues.
D. The Director 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 unless such person
holds a valid license of the type required under this chapter.
Sec. 5-24.16. Application for massage therapist license.
A. A completed application with required application fee for a massage therapist license
shall be filed with the Administrative Services Director or his/her designee.
B. Within seventy-five (75) days following receipt of a completed application, the
Director shall complete his/her review of the completed application and either issue
the permit or mail a written statement of the reasons for denial, unless continued as
provided herein. The Director may continue the review for a period not to exceed
sixty (60) days for the reasons provided in Section 5-24.11. The applicant shall
furnish required application information and the following additional information:
1. Social Security number and driver's license number, if any;
2. The name and address of the establishment where the applicant is to be
employed or engaged in the practice of massage if self-employed and the name
of the owner or operator of the same. Any massage therapist granted a license
must report any change in location of work within ten (10) days prior to the
change;
3. The name and address of the recognized school of massage attended, the dates
attended, and a copy of the diploma or certificate of graduation awarded to the
applicant showing the applicant has completed no fewer than five hundred (500)
hours of instruction. All applicants may be required to furnish additional evidence
of enrollment and attendance of the required class hours and are subject to an
oral interview by the Administrative Services Director to establish the bona fide
completion of educational requirements;
4. Proof that the applicant has successfully completed and passed the testing
procedure prescribed by the Director in accordance with Sec 5-24.26. If the
testing procedure prescribed by the Director is the NCE administered by the
NCBTMB, then the applicant shall satisfy this subdivision by causing the
NCBTMB to mail, directly to the City, a certificate indicating the applicant has
16 08-02-2005
taken the NCE and that the applicant obtained a score on that NCE required by
NCBTMB to pass that NCE.
5. A statement in writing by the applicant made under penalty of perjury that the
information furnished is true and correct, said statement being duly dated;
6. Written proof that the applicant is at least eighteen (18) years of age;
7. Such other information as may reasonably be deemed necessary by the City
Manager or determined to be necessary by the Orange County Sheriffs
Department to investigate the accuracy and veracity of the information required
in the application.
8. The application shall not be deemed complete until the applicant has furnished
clear, legible, and classifiable fingerprints, as reasonably determined by the
Orange County Sheriffs Department, to the City for the purpose of establishing
identification.
Sec. 5-24.17. National Test Required for Massage Therapist.
A. As a condition of obtaining a massage therapist license under this chapter, each
applicant shall take and obtain a passing score on the current National Certification
Examination for Therapeutic Massage and Bodywork as developed, administered,
and verified by the NCBTMB, or equivalent testing procedure as approved by the
City.
B. In the event the Director is apprised of facts indicating that the testing procedure is
impractical for the City to verify or administer, then the Director may prescribe
another eligible testing procedure.
Sec. 5-24.18. Grounds for denial of massage therapist license.
A. Within seventy-five (75) days following receipt of a completed application, the
Administrative Services Director, or his/her designee, shall either issue a massage
therapist license or mail a written statement of the reasons of denial thereof. The
Director shall issue the license to the applicant provided the applicant has met the
licensing requirement criteria, unless the Director finds one or more of the following
grounds requiring denial:
1. The applicant made a material misstatement in the application for a license;
2. The applicant is a person who has engaged in disqualifying conduct;
_ 3. The applicant has violated any provision of this chapter, or of any similar
ordinance, law, rule or regulation of another public agency which regulates the
operation of massage therapists;
17 08-02-2005
4. The applicant has failed to meet the educational training requirements required
herein.
B. Appeal process. A denial of the application for a massage therapist license be
appealed pursuant to section 5-24.22.
Section 5-24.19. Reapplication after denial.
An applicant whose application has been denied may not reapply for such license for a
period of one (1) year from the date of denial. However, a reapplication prior to the
expiration of one year may be made if accompanied by evidence that the grounds for
denial no longer exist.
A licensee under this chapter whose license has been revoked or not renewed may not
reapply for such a license for a period of one (1) years from the date of revocation or
non -renewal.
Section 5-24.20 Application of Massage Therapist Licensing Requirements
To Current Masseuses.
Any person currently engaging in massage activity under valid permit from the
City shall apply for and receive approval of a massage therapist license in full
conformance with the requirements of this chapter within one (1) year from the effective
date of this chapter in order to continue to engage in massage in the city.
Section 5-24.21 Renewal of massage therapist license.
A. Each massage therapist license shall expire after one (1) calendar year from the
date of issuance of the license unless renewed in accordance with this chapter.
B. The licensee requesting renewal of its massage therapist license shall file an
application for renewal with Administrative Services Director at least sixty (60) days
prior to the scheduled expiration of the license. The renewal application shall
provide all of the information required under Sec. 5-24.24, the location(s) at which
the licensee performs massage services, and the scheduled date for expiration of
the license for which the licensee is seeking renewal.
C. Any application for renewal of a massage therapist license shall be accompanied by
a renewal fee in the 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 Director 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. 5-24.21.
18 08-02-2005
Section 5-24.22 Appeals of Determinations on Certificates of Exemption And
Denials of Massage Establishment and Massage Therapist
Licenses.
The Administrative Services Director, or his/her designee, shall issue a written
determination citing the reasons for the denial with respect to applications for a
Certificate of Exemption, massage establishment and massage therapist 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.
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.
Section 5-24.23 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 Administrative Services Director, 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 Director determines that
grounds to revoke the license are present, then the Director 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
Director, which date shall not be less then 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:
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;
19 08-02-2005
5. Where the license to be revoked is a massage establishment license:
1. The licensee has continued to operate the massage establishment after the
license has been suspended;
2. The licensee has failed to comply with one or more of the facilities and
operations requirements of Sec. 5-24.14;
3. The licensee has employed or otherwise allowed a person to work as a massage
therapist at the massage establishment who:
i. Does not have a valid permit; or
ii. Has engaged in disqualifying conduct at the massage establishment.
4. Where the license to be revoked is a massage therapist's license:
i. The licensee has continued to function as a massage therapist after the
license has been suspended; or
ii. The licensee has failed to comply with any of the licensing requirements of
this chapter.
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.
Sec. 5-24.24. Notice of revocation or non -renewal.
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.
20 08-02-2005
C. The notice shall be in writing and shall contain all of the following:
1. That the City intends to revoke or not renew the license;
2. The grounds for the revocation or non -renewal;
3. The date, time, and place of the revocation or non -renewal 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 non -renewal of
the license.
Sec. 5-24.25. Hearing for revocation or non -renewal of license.
A. The Administrative Services Director, or designee, shall conduct a hearing within
thirty (30) days of the City's mailing of the notice required by Sec. 5-24.31.
B. The City shall have the initial burden of proof.
C. At the conclusion of the hearing, the Director, or designee, shall decide whether the
grounds for revocation or non -renewal exist. Within ten (10) days after the
conclusion of the hearing, the Director 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 Director, or designee, 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 Administrative Services Director.
The City Manager shall issue a written determination within 10 days of the hearing
citing the reasons for his conclusions. The decision shall be mailed by first class mail
to the appellant. This decision may be appealed to the City Council by filing a
written appeal with the City Clerk within fifteen (15) days of the mailing of the
decision. The City Council shall hold an appeal hearing on the appeal at its next
available meeting.
Section 5-24.26. Violations declared a public nuisance.
In addition to the misdemeanor remedies provided for in the Municipal Code for
violations of this chapter, any violation of any provision of this chapter is declared to be
a public nuisance and is subject to abatement as state law may permit."
21 08-02-2005
2. Municipal Code section 3-1.202(c) is hereby amended in its entirety to
read as follows:
"3-1.202(c). Classification "C": Special business licenses. Classification "C"
licenses include all businesses and persons involving massage -related services
and shall pay an annual license tax as determined by City Council fee
resolution."
SECTION 2 EFFECTIVE DATE
This Ordinance shall take effect and be in force thirty (30) days after its passage.
SECTION 3 CITY CLERKS CERTIFICATION
The City Clerk shall certify to the adoption of this Ordinance and cause the same to be
posted a 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 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, APPROVED AND ADOPTED this 2"d day of August 2005.
42�
R. Monahan, City Clerk
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22 08-02-2005
_ STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, MARGARET R. MONAHAN, 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. 908
which was regularly introduced and placed upon its first reading at the Regular Meeting
of the City Council on the 19th day of July 2005 and that thereafter, said Ordinance was
duly adopted and passed at the Regular Meeting of the City Council on the 2nd day of
August 2005 by the following vote, to wit:
AYES: COUNCIL MEMBERS: Allevato, Soto, Swerdlin, and Mayor Hart
NOES COUNCIL MEMBERS: None
ABSENT: COUNQ[L.WMBEIRS: Bathgate
R. MONAHAN, City Clerk