HomeMy WebLinkAboutORD 1368 (2009)ORDINANCE NO. 1368
AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING PART 2 OF
CHAPTER 6 OF THE TUSTIN CITY CODE, RELATING TO
REGULATION OF MASSAGE ESTABLISHMENTS AND
MASSAGE THERAPISTS FOR A PERIOD OF FORTY-FIVE DAYS
PENDING THE COMPLETION OF A STUDY OF THE
REGULATIONS AND IMPLEMENTATION GUIDELINES
ANTICIPATED FROM THE MASSAGE THERAPY COUNCIL
APPLICABLE TO THE REGULATION OF MASSAGE
THERAPISTS UNDER RECENT STATE LEGISLATION. (4/5ths
Vote Required.)
The City Council of the City of Tustin ordains:
SECTION 1. This interim urgency ordinance is adopted pursuant to Section 65858 of the
California Government Code.
SECTION 2. Part 2 of Chapter 6 of the Tustin City Code, entitled "Massage Establishments
and Massage Therapists" is amended to read:
PART 2 MASSAGE ESTABLISHMENTS AND MASSAGE THERAPISTS
3621.01 Purpose and intent.
It is the purpose and intent of this Part to provide for the orderly regulation of massage
establishments and their massage therapists and employees in the City.
3621.02 Definitions.
For the purpose of this Part, 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.
"City's Building Codes" means the various codes adopted and amended pursuant to Sections
8100 through 8927 inclusive of the Tustin City Code.
"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.
"Director" shall mean the Director of the Community Development of the City or the Director's
designee.
"Manager" means a person who has been designated by an operator to be responsible for the
operation of a licensed massage establishment.
"Massage" or "Massage therapy" 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.
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"Massage establishment" means any business conducted within the City of Tustin where any
person, firm, association, partnership, corporation, or combination of individuals engages in,
conducts, carries on, or permits to be engaged in, conducted or carried on for money or any
other consideration, administers to another person a massage, bath, or health treatment
involving massages or baths.
"Massage therapist," "Massage technician," and Massage Practitioner" 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.
"Massage Therapy Organization" or "MTO" shall mean the non-profit organization established
by SB 731 (Chapter 384, 2008 Statutes), Business and Professions Code sections 4600 et
seq., and authorized to issue massage practitioner or therapist certificates on a statewide basis
pursuant to section 4600(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.
"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.
"Operator" means a person who has been issued a license to operate a massage
establishment.
"Person" means any individual, firm, association, partnership, corporation, joint venture, limited
liability company, or combination of individuals.
"Police Chief' means the Police Chief of the City of Tustin or the Police Chief's designee.
"Recognized school of massage" means any school or institution of learning which teaches,
through state certified instructors, the theory, ethics, practice, profession, or work of massage,
which school or institution complies with the California Education Code, including but not
limited to Section 94900, 94905, or 94915, and which requires a resident course of study
before the student shall be furnished with a diploma or certificate of graduation. Schools
offering a correspondence course not requiring actual attendance shall not be deemed a
recognized school.
3622.01 Permit Requirements.
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
operator permit obtained in accordance with this Part.
B. A massage operator permit shall only be issued to the person signing the application,
after compliance of this Part and all other applicable provisions of this Code, including, but not
limited to, the payment of the appropriate application fees, unless grounds for denial of the
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massage establishment permit are found to exist.
C. No operator permit shall be issued to a person pursuant to this Part unless: (i) the
massage establishment is located and conducted on the premises of a fixed location within the
City; (ii) the massage establishment is located and conducted within a zoning district that
permits such uses; and (iii) an occupancy permit has been issued by the City for the massage
establishment.
D. A separate license shall be obtained for each separate massage establishment owned,
operated, or managed by such person.
3622.02 Application for massage establishment operator's permit.
A. Any person desiring an operator's permit for a massage establishment business
shall file a written application on the required form with the Director, who shall conduct an
investigation. The application shall be accompanied by a filing fee as established by resolution
of the City Council to conduct the investigation and process the application on the City's behalf.
The City may also establish by resolution of the City Council an appropriate filing fee, which
represents the City's costs to conduct the investigation and process the application. The
application is completed and signed by the operator of the proposed massage establishment, if
a sole proprietorship; one general partner, if the operator is a partnership; one officer or one
director, if the operator is a corporation; and one participant, if the operator is a joint venture.
The application for permit does not authorize operation of a massage establishment unless
and until such permit has been properly granted. The application shall contain or be
accompanied by the following:
1. The type of ownership of the business, i.e., whether by individual, partnership,
corporation, or otherwise. If the applicant is a corporation, the name of the corporation
shall be set forth exactly as shown in its articles of incorporation or charter together with
the state and date of incorporation and the names and residence addresses of each of
its current officers and directors, and of each stockholder holding more than five percent
of the stock of that corporation. If the applicant is a partnership, the application shall set
forth the name and residence of each of the partners, including limited partners. If it is a
limited partnership, it shall furnish a copy of its certificate of limited partnership filed with
the Secretary of State. If one or more of the partners is a corporation, the provision of
this subsection pertaining to corporations shall apply. The applicant corporation or
partnership shall designate one of its officers or general partners to act as its
responsible managing officer. Such designated persons shall complete and sign all
application forms required for an individual applicant under this chapter, but only one
application fee shall be charged.
2. The precise name under which the massage establishment is to be conducted.
3. The complete address and telephone numbers of the massage establishment.
4. A complete current list of the names and residence addresses of all proposed
massage technicians, MTO certificate holders, and employees in the massage
establishment and the name and residence addresses of the manager or managing
employee proposed to be principally in charge of the operation of the massage
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establishment, together with copies of MTO certificates or technician permits, as the
case may be.
5. A description of any other business operated on the same premises, or within the
city, or within the state, which is owned or operated by the applicant.
6. The following personal information concerning the applicant:
a. Full complete name and all aliases used by the applicant.
b. Current address and all previous residential addresses for seven years
immediately preceding prior to the present address of the applicant.
c. Acceptable proof that the applicant is at least eighteen (18) years of age.
d. Height, weight, color of hair, eyes, and sex.
e. Two front faced portrait photographs at least two inches by two inches in
size.
f. The applicant's complete business, occupation, and employment history
for seven years preceding the date of application, including, but not limited to, the
massage or similar business history and experience of the applicant.
g. The complete massage permit history of the applicant; whether such
person has ever had any permit or license issued by any agency, board, city, county,
territory, or state; the date of issuance of such a permit or license, whether the permit
or license was denied, revoked, suspended or refused to be renewed; or of a
vocational or professional license or permit was denied, revoked, suspended or refused
to be renewed; and the reason therefore.
h. All criminal convictions, including pleas of nolo contendre, within the last
ten years including those dismissed or expunged pursuant to Penal Code Section
1203.4, but excluding minor traffic violations, and the date and place of each such
conviction and reason therefor.
i. A complete set of fingerprints taken in a manner approved by the Police
Chief.
7. The name and address of the owner and lessor of the real property upon or in
which the business is to be conducted. In the event the applicant is not the legal owner
of the property, the application must be accompanied by a copy of the lease and a
notarized acknowledgment from the owner of the property that a massage
establishment will be located on his or her property.
8. An acknowledgment that the city, its agents and employees will seek verification
of the information contained in the application pursuant to Business and Professions
Code section 4612(b)(7)(B).
9. A statement in writing and dated by the applicant that he or she certifies under
penalty of perjury that all information contained in the application is true and correct.
10. If, during the term of a permit, the permit holder has any change in information
submitted on the original or renewal application, the permit holder shall notify the Police
Department of such change within ten business days thereafter, in writing.
3622.03 Massage establishment operator's permit issuance and denial.
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Upon receipt of a complete application for a permit, the Director shall conduct an
investigation to ascertain whether such permit should be issued. The Director shall within thirty
(30) days of receipt of a complete application, approve, conditionally approve, or deny the
application. The thirty (30) day period may be extended by the Director for up to thirty (30)
additional days, to complete the investigation. The Director shall issue such permit as
requested, unless he or she makes any of the following findings:
1. The applicant, if an individual, or any of the officers or directors of the
corporation, if the applicant is a corporation; or a partner, if the applicant is a partnership, or
any person directly engaged or employed in the massage establishment, has within seven
years preceding the date of the application:
a. Been convicted of a violation of California Penal Code sections 266h, 266i,
314, 315, 316, 318, Subsections (a), or (b) of Penal Code Section 647 or any
other provision of law pursuant to which a person is required to register under the
provisions of Penal Code Section 290, or when the prosecution accepted a plea
of guilty or nolo contendere to a charge of a violation of California Penal Code
Section 415 or any lesser included or lesser related offense, in satisfaction of or
as a substitute for, any of the previously listed crimes.
b. Been convicted of a violation of Health and Safety Code Section 11550 or
any offense involving the illegal sale, distribution, or possession of a controlled
substance specified in Health and Safety Code Section 11054, 11055, 11056,
11057 or 11058.
c. Been convicted of any offense in any other state which is the equivalent of
any of the above-mentioned offenses.
d. Been engaged in conduct in another jurisdiction which, if it had occurred
within the city, would constitute grounds for denial, suspension, or revocation
under this chapter.
e. Been subjected to a permanent injunction against the conducting or
maintaining of nuisance pursuant to Sections 11225 through 11235 of the
California Penal Code, or any similar provisions of law in a jurisdiction outside the
state.
f. Engaged in conduct which would constitute an offense as described in
subsection (A)(1)(a) of this section.
g. Committed an act in another jurisdiction, which if committed in this state
would have been a violation of law or, which, if done by a permittee under this
chapter, would be grounds for denial, suspension or revocation of the permit.
h. Been convicted of an act involving dishonesty, fraud, deceit or an act of
violence, which act or acts are related to the qualifications, functions, or duties of
the operator.
i. The applicant has had a massage operator permit, MTO certificate,
massage technician permit or other similar license or permit denied, suspended,
revoked, or refused to be renewed for cause by a licensing authority or by any
city, county, or state.
2. The applicant has made a false, misleading, or fraudulent statement or omission
of fact to the city in the permit application process.
3. The application does not contain all of the information required by Section
3622.02 of this Part.
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4. The massage establishment as proposed by the applicant does not comply with
all applicable laws, including, but not limited to, health, zoning, fire and safety
requirements and standards.
5. If the application is denied for failure to comply with subsections A-2 or A-3 of this
section, the applicant may not reapply for a period of one year from the date the
application was denied.
6. The applicant, or any of the applicant's employees or independent contractors,
has violated a provision of Business and Professions Code sections 4600-4613.
3622.04 Massage establishment operating requirements.
A. No massage operator permit shall be issued unless an inspection by the City of Tustin
reveals that the massage establishment complies with each of the following regulations:
1. A recognizable and readable sign shall be posted at the main entrance,
identifying the establishment as a massage establishment, provided that all such signs
shall comply with the Tustin Sign Code.
2. Minimum lighting shall be provided in accordance with the City Building Codes.
In addition, a light level of no less than five (5) foot candles shall be maintained in public
rooms, walkways, and at any point within each room or enclosure where massage
services are performed, at all times such services are being provided.
3. Minimum ventilation shall be provided in accordance with the Uniform Building
Code.
4. Adequate equipment for disinfecting and sterilizing instruments used in
performing the acts of massage shall be provided which are approved by the
department or agency designated by the City Manager to make inspections for
compliance with health standards.
5. Pads used on massage tables shall be covered in a workmanlike manner with
durable, washable plastic or other waterproof material acceptable to the department or
agency designated by the City Manager to make inspections for compliance with health
standards.
6. In any massage establishment in which massage services are rendered only to
members of the same sex at anyone time, such persons of the same sex may be placed
in a single separate room or the massage operator may elect to place such persons of
the same sex in separate enclosed rooms or booths having adequate ventilation to an
area outside said room or booth while massage services are being performed.
7. Adequate bathing, dressing, locker, and toilet facilities shall be provided for
patrons, except that dressing and locker facilities shall not be required if all patrons
remain fully clothed while in the massage establishment, and bathing. facilities shall be
required only when the massage establishment provides steam rooms or sauna baths.
If applicable, a minimum of one tub or shower, one dressing room containing a separate
locker for each patron to be served, which locker shall be capable of being locked, as
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well as a minimum of one (1) toilet and one (1) wash basin shall be provided by the
massage establishment, provided, however, that if male and female patrons are to be
served simultaneously at the establishment, separate bathing, separate dressing, and
separate toilet facilities shall be provided for male and female patrons. Where steam
rooms or sauna baths are provided, if male and female patrons are to be served
simultaneously, separate steam rooms or sauna rooms shall be provided for male and
female patrons. Hot and cold running water under pressure shall be provided to all
wash basins, bathtubs, showers, and similar equipment. Each wash basin shall be
provided with soap or detergent and sanitary towels placed in permanently installed
dispensers. A trash receptacle shall be provided in each toilet room.
8. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other
physical facilities for the 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
each day the business is in operation. Bathtubs shall be thoroughly cleaned after each
use.
9. Clean and sanitary towels and linens shall be provided for each patron of the
establishment or each patron receiving massage services. No common use of towels or
linens shall be permitted. Towels, sheets, and linens shall be provided in sufficient
quantity and shall not be used by more than one (1) person unless they have been first
re-laundered. Separate closed cabinets or containers shall be provided for the storage
of clean and soiled linen and shall be plainly marked: "clean linen," "soiled linen."
10. A minimum of one separate wash basin shall be provided in each massage
establishment for the use of employees of any such establishment, which basin shall
provide soap or detergent and hot and cold running water at all times, and shall be
located within or as close as practicable to the area devoted to the performing of
massage services. In addition, there shall be provided at each wash basin sanitary
towels placed in permanently installed dispensers.
B. All massage establishments, their owners, operators, and managers are subject to the
following massage establishment operating conditions:
1. Except to the extent required, in writing, by a state licensed medical practitioner,
no massage establishment employee or independent contractor shall massage the
genital, buttock, or anal area of any patron or the breasts of any female patron, nor shall
any operator or manager of a massage establishment allow or permit such massage.
No massage operator or designated manager while performing any task or service
associated with the massage business, shall be present in any room with another
person unless the person's genitals, buttocks, anus, or, in the case of female, her
breast(s), are fully covered.
2. No person granted a permit pursuant to this chapter shall use any name or
conduct business under any designation not specified in his or her permit.
3. All massage establishments required to be licensed under this chapter shall have
µ.~ ~ a manager on the premises at all times the massage establishment is open. The
operator of each massage establishment shall file a statement with the Director
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designating the person or persons with power to act as a manager. The operator and/or
on-duty manager shall post, on a daily basis, the name of each on-duty manager and
each on-duty technician 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. All operators and/or on-duty
managers must be able to communicate effectively with city regulatory officials.
4. No licensed establishment shall be open for business without having at least one
massage technician, or MTO certificate holder on the premises, and on duty, at all times
when said establishment is open and ready to perform massage therapy.
5. The operator shall ensure that copies of massage technician permits or MTO
certificates, as the case may be, are prominently displayed for each individual
authorized to perform massage in a conspicuously public place in the lobby. Such
identification shall be provided to city regulatory officials upon demand.
6. No operator or manager shall employ or retain any person to perform massage
therapy who does not have a valid massage technician permit or MTO certificate. Every
operator or manager shall report to the Director any change of employees/independent
contractor, whether by new or renewed employment, discharge or termination, on the
form and in the manner required by the Director. The report shall contain the name of
the employee and the date of hire or termination. The report shall be made within five
days of the hire or termination. The operator shall deliver the permit and photo
identification card of any massage technician/independent contractor no longer
employed by the operator to the Director within five days.
7. All persons employed or retained in the massage establishment shall be fully
clothed at all times. Clothing shall be of a fully opaque, nontransparent material and
shall provide complete covering from mid-thigh to three inches below the collar bone.
8. The operator and/or on duty manager shall maintain a register of all
employees/independent contractors, showing the name, nicknames, and aliases used
by the such person, home address, age, birth date, sex, height, weight, color of hair and
eyes, phone numbers, social security number, date of employment and termination, if
any, and duties of each employee. The above information on each employee shall be
maintained in the register on the premises fora period of two years following
termination. The operator and/or manager on duty shall make the register of employees
available immediately for inspection by police upon demand of a representative of the
Police Department at all reasonable times.
9. Pursuant to Business and Professions Code section 4612(c), the massage
establishment permittee is responsible for the conduct of all employees and
independent contractors working on the business premises. Accordingly, an operator's
permit may be suspended or revoked based also upon violations of this chapter
committed by the permittee's employees or independent contractors.
3623.01 Applicability of city massage technician permit requirements.
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A. No person shall perform or administer a massage unless such person has a valid
massage technician permit, excepting those persons who are MTO certificated as described in
subsection (b) of this section.
B. After September 1, 2009, any person having received, and presented proof of, a valid
MTO massage practitioner or therapist certificate shall be exempt from the massage technician
permit requirements of this section in accordance with Business and Professions Code
sections 4600 et seq.
C. Beginning September 1, 2009, Business and Professions Code sections 4600 et seq.
establishes a voluntary system of certification for individuals desiring to practice massage
therapy. Therefore, any individual electing not to become MTO certificated shall be subject to
the massage technician permit requirements contained within this chapter.
3623.02' Application for massage technician permit.
A. Any person desiring a massage technician permit shall file a written application
on the required form with the Director who shall conduct an investigation. The application is
accompanied by an appropriate filing fee as may be established by the City Council by
resolution. The application shall contain the following information:
1. A statement of the exact massage establishment location at which the applicant
will be working as a massage technician, including the full street address and all
telephone numbers associated with said fixed location, and the name and address of
the massage establishment.
2. The following personal information concerning the applicant:
a. Full complete name, and all aliases used by the applicant, along with complete
residence address and telephone;
b. All previous residential addresses for eight years immediately preceding the
present address of the applicant;
c. Acceptable written proof that the applicant is at least eighteen (18) years of age;
d. Height, weight, color of hair and eyes, and sex;
e. Two front faced portrait photographs at least two inches by two inches in size;
f. The business, occupation, and employment history of the applicant for the eight
years immediately preceding the date of the application;
g. The complete permit history of the applicant and whether such person has ever
had any license or permit issued by any agency, board, city, or other jurisdiction denied,
revoked, suspended, or refused to be renewed and the reasons therefore.
3. All criminal convictions, including pleas of nolo contendere, within the last ten
years, including those dismissed or expunged pursuant to Penal Code Section 1203.4,
but excluding minor traffic violations, and the date and place of each such conviction
and reason therefor.
4. A complete set of fingerprints taken in a manner approved by the Police Chief.
5. Such other information and identification as the Director may require in order to
discover the truth of the matters herein specified and as required to be set forth in the
application.
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6. Authorization for the City, its agents and employees to seek verification of the
information contained in the application.
7. A statement in writing, and dated, by the applicant that he or she certifies under
penalty of perjury that all information contained in the application is true and correct.
8. If during the term of a permit, a permit holder has any change in information
submitted on the original or renewal application, the permit holder shall notify the Police
Department of such change within ten business days thereafter, in writing.
B. Each applicant must furnish the following information:
1. An original or certified copy of a diploma or certificate and certified transcript of
graduation for completion of one thousand (1000) hours of instruction from an approved
or recognized school of massage, wherein the method, practice, profession, theory,
ethics, anatomical and physiological knowledge and practice of a massage technician is
taught by state certified instructors. The applicant must also supply a course description,
an outline of material covered, and a letter to the city from the school administrator
verifying completion.
a. The Director may consider an applicant's study of massage completed
outside the state if proof of completion from a formalized course of study in
massage practice, anatomy, and/or physiology is provided with the application.
Proof of completion includes dates of study and the name, address, and phone
number of the school attended.
b. Any outside course of study submitted for approval meets the state of
California's Office of Post-Secondary Education's minimum requirements and be
for completion of one thousand (1000) hours of on-premises training.
2. Certification that within one year preceding the application, the applicant has
taken and obtained a passing score on the test prescribed by the Director in accordance
with this Chapter.
a. The Director shall require one of the following eligible testing procedures
to be applied to all applicants filing applications for massage technician licenses.
In the event the Director is apprised of facts indicating that a testing procedure is
impractical for the city to verify or to administer, then the Director may prescribe
that the other eligible testing procedure shall apply to all applicants filing
applications for massage technician licenses from and after the date of the
Director's determination. The eligible testing procedures that may be prescribed
by the Director are:
i. That all applicants take and pass the then current NCE as
developed, administered, and verified by the NCBTMB; or
ii. That all applicants take and pass the then current "City
Standardized Massage Technician/Practitioner Test" ("city test"). The city
test is a written examination testing the applicant's knowledge of the basic
subject matter, skills, and abilities needed to perform safe and therapeutic
massage. The city test is developed by the Director, who may rely upon
tests developed and administered by other state and local organizations.
The city test is administered by the Director under conditions adequate to
ensure the security and accuracy of the testing procedure. Each city test is
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designated with a separate identification number for tracking purposes.
Applicants are required to answer seventy (70) percent of the questions on
the city test correctly in order to pass the test. The score is calculated
based on individual test results and is not dependent upon the
performance of a group of test takers (i.e., is not graded on a "Bell curve").
The City Council may, by resolution, set and charge a fee for taking the
city test. An applicant who fails to pass the city test is not eligible to take
the city test until thirty (30) days after the previous city test. An applicant
who fails to pass upon a second attempt is not again eligible until six
months thereafter. An additional processing fee may be required to be
filed with the Director prior to taking each city test. The city test will be in
English. In the event the applicant does not read and write English
sufficient to take and pass the city test, it is the responsibility of the
applicant to, at their own expense, make arrangements with aCourt-
certified interpreter to interpret the examination. Proof of Court certification
must be provided to the city prior to the administration of the examination.
b. 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
taken the NCE and that the applicant obtained the score on that NCE required by
NCBTMB to pass that NCE. If the testing procedure prescribed by the Director is
the city test, then the applicant shall state the date upon which the city test was
taken and the identification number provided on the test, so that the Director can
verify the taking and passing of the test.
c. Exception. A massage technician is exempt from the testing requirements
set forth in Section 4-28.070(8)(2) if he or she has satisfied both of the following
requirements:
i. The massage technician has received at least thirty-two (32) hours
of specialized instruction and training in prenatal and perinatal massage
therapy from Body Therapy Associates or Bodywork for the Childbearing
Year, or another institution approved by the Director; and
ii. The massage technician is currently employed by a licensed
massage establishment/operator that provides prenatal and perinatal
massage therapy services to at least fifty (50) percent of its clientele.
3623.03 Massage technician permit issuance and denial.
Upon receipt of a complete application for a permit, the Director shall conduct an
investigation in order to ascertain whether such permit should be issued as requested. The
Director shall shall approve, conditionally approve, or deny the application within thirty (30)
days of the filing complete application. The thirty day period may be extended for up to thirty
(30) additional days by the Director to complete the review process. The Director shall issue
such permit as requested unless any of the following findings are made:
1. The applicant has within eight years preceding the date of the application been
convicted of any of the following:
a. A violation of Penal Code Sections 266(h), 266(i), 314, 315, 316, 318,
subsections (a) or (b) of Penal Code Section 647 or that the applicant is required
A ~ to register under the provisions of Penal Code Section 290, or when the
prosecution accepted a plea of guilty or nolo contendre to a charge of a violation
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of California Penal Code Section 415 or any lesser included or lesser related
offense, in satisfaction of or as a substitute for, any of the previously listed
crimes;
b. A violation of Health and Safety Code Section 11550 or any offense
involving the illegal sale, distribution or possession of a controlled substance
specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or
11058; or
c. Any offense in any other state which is the equivalent of any of the above-
mentioned offenses in subsections (A)(1)(a) or (A)(1)(b) of this section.
2. The applicant has engaged in conduct in another jurisdiction which, if it had
occurred within the city, would constitute grounds for denial, suspension, or revocation
of the massage technician permit under this chapter.
3. The applicant has been convicted of an act involving dishonesty, fraud, deceit or
an act of violence, which act or acts are substantially related to the qualifications,
functions, or duties of a massage technician.
4. The applicant has had a massage establishment permit or massage technician
permit or other similar license or permit denied, suspended, revoked, or refused to be
renewed for cause by a licensing authority or by any city, county or state within eight
years prior to the date of the application.
5. The applicant has knowingly made a false, misleading, or fraudulent statement or
omission of fact to the city in the permit application process.
6. The applicant has not complied with Section 3623.02-B of this Part.
7. The application does not contain the information required by Section 3623.02-Aof
this Part.
8. If the application is denied for failure to comply with subsections A-5 or A-7 of this
section, the applicant may not reapply for a period of one year from the date the
application was denied.
9. The applicant has violated a provision of Business and Professions Code
sections 4600-4613.
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3623.04 Massage technician operating requirements.
Any person performing massage therapy under a technician permit or MTO certificate
("the permittee") shall comply with the following conditions:
1. Except to the extent required, in writing, by a state licensed medical practitioner,
no permittee shall massage the genital, buttock, or anal area of any patron or the
breast(s) of any female patron. No permittee, while performing any task or service
associated with the massage business, shall be present in any room with another
person unless the person's genitals, buttock, anus, or, in the case of female, her
breast(s), are fully covered.
2. No permittee shall massage any patron unless the person's genitals, buttocks,
anus, and in the case of a female, her breast(s), are fully covered at all times.
3. The permittee shall have their massage technician permit or MTO certificate on
their person at all times when present in the massage establishment. Such identification
shall be provided to city regulatory officials upon demand.
4. No permittee shall perform any massage at any location other than the location
specified on the permit.
5. While on duty, no permittee shall use any name other than that specified on the
permit.
6. Each permittee shall be fully clothed at all times. Clothing shall be of a fully
opaque, non-transparent material and provide the complete covering from mid-thigh to
three inches below the collar bone
3624 Change of Ownership
A. A massage establishment operator shall report to the Director within ten (10) days any
and all changes of ownership or management of the massage establishment, including, but not
limited to, changes of manager or other person principally in charge, stockholders holding
more than five (5) percent of the stock of the corporation, officers, directors, and partners in
any and all changes of name, style, or designation under which the business is to be
conducted, and all changes of address or telephone numbers of the massage business. A
change of location of any premises may be approved by the Director, provided there is
compliance with all applicable regulations of the City..
B. No massage establishment permit may be sold, transferred, or assigned by a permittee,
or by operation of law, to any other person or persons. Any such sale, transfer, or assignment,
or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender
of such permit and such permit shall thereafter be null and void; provided ~d excepting,
however, that if the permittee is a partnership and one or more of the partners should die, one
or more of the surviving partners may acquire, by purchase or otherwise, the interest of the
deceased partner or partners without effecting a surrender or termination of such permit, and in
such case, the permit, upon notification to the Director, shall be placed in the name of the
surviving partners. A massage establishment permit issued to a corporation shall be deemed
terminated and void when either any outstanding stock of the corporation is sold, transferred,
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assigned after the issuance of a permit, or any stock authorized but not issued at the time of
the granting of a permit is thereafter issued or sold; transferred, or assigned. No massage
technician permit may be sold, transferred, or assigned by a permittee, or any operation of law,
to any other person or persons.
3625 Exemption
A. This Part does not apply to cosmetologists, barbers, or to persons licensed to practice
any healing art pursuant to Business and Professions Code, Division 2, section 500 et seq., or
the Chiropractic Act (collectively, "Healing Arts Practitioner"), when performing massage within
the scope of his or her license. Such Healing Arts Practitioners shall be required to obtain a
massage operator permit if their employees are proposed to engage in massage.
B. Notwithstanding any other provision of law, this part applies to an employee of any
person described in subsection a if the employee is engaged in, or is purported to be engaged
in, the business of massage, and is located on the premises of a person described in
subsection A.
C. This Part does not apply to City permitted massage technicians who perform chair
massage on fully clothed persons at public places.
3626 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 Part.
SECTION 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is
for any reason held out to be invalid or unconstitutional by the decision of any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions of
this ordinance. The City Council hereby declares that it would have adopted this ordinance
and each section, subsection, clause, phrase or portion thereof irrespective of the fact that any
one or more sections, subsections, sentences, clauses, phrases, or portions be declared
invalid or unconstitutional.
SECTION 4. The City Council hereby finds, determines, and declares that this interim
urgency ordinance adopted pursuant to California Government Code Section 65858 is
necessary because:
A. The City is authorized by Government Code Section 51031 to regulate massage
establishments; however, the state legislature recently adopted SB 731 (Chapter 384, 2008
Statutes), Business and Professions Code sections 4600 et seq., which calls for the
establishment of statewide standards and licensing procedures for persons engaging in
massage therapy.
B. SB 731 establishes anon-profit entity referred to in SB 731 as the "Massage Therapy
Organization" and recently renamed as the "Massage Therapy Council" ("the MTC") with
authority to license individuals on a voluntary basis statewide to perform massage service.
The MTC, beginning not sooner than September 1, 2009 may begin issuing massage
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practitioner and therapist certificates to qualified individuals. Accordingly, after September 1,
2009, any MTC certificated individual shall be exempt from massage technician licensing and
testing requirements under law.
C. Pursuant to Business and Professions Code Section 4612(a)(3), municipalities are
authorized to enact licensing requirements for massage establishments consistent with the
provisions of SB 731; however, the MTC is still the process of preparing final regulations and
requirements, including adoption of standards for issuance of certificates to massage
therapists and related criteria and practices.
D. This interim ordinance will ensure that the City has adopted an ordinance that
reasonably implements the provisions of SB 731 while City staff reviews and considers future
promulgations and regulations from the state and the MTC while maintaining the current
provisions of the Tustin City Code that promote the discouragement of massage
establishments from degenerating into houses of prostitution
SECTION 5. Ten days prior to the expiration of this interim urgency ordinance, and any
extension thereof, the City Council shall issue a written report describing the measures which
the City has taken to address the conditions which led to the adoption of this ordinance or any
extension.
SECTION 6. This interim urgency ordinance shall take effect immediately upon its
adoption by afour-fifths (4/5) vote of the City Council. This interim urgency ordinance shall
continue in effect for forty-five (45) days from the date of its adoption and shall thereafter be of
no further force and effect unless, after notice pursuant to California Government Code Section
65090 and a public hearing, the City Council extends this interim urgency ordinance for an
additional period of time pursuant to California Government Code Section 65858.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this
4t" day of August, 2009.
ATTEST: /~-~
PAM STOKER, LERK
APPROVED AS TO FORM:
DOUGLAS HOLLAND, CITY A TORNEY
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STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City Council of the City of
Tustin is 5; that the above and foregoing Ordinance No. 1368 was duly and regularly introduced and
adopted at a regular meeting of the Tustin City Council, held on the 4~h day of August, 2009 by the
following vote:
COUNCILMEMBERAYES: Davert, Amante, Gavello, Nielsen, Palmer (5)
COUNCILMEMBER NOES: None (p)
COUNCILMEMBER ABSTAINED: None (p)
COUNCILMEMBER ABSENT: None (p)
,---~
P ELA STOKE
CITY CLERK
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