HomeMy WebLinkAbout03 Code Amendment 10-003ITEM #3
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DATE: MAY 11, 2010
TO: PLANNING COMMISSION
FROM: COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT: CODE AMENDMENT 10-003, MASSAGE ESTABLISHMENTS
RECOMMENDATION:
TUSTIN
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BUILDING OUR FUTURE
HONORING OUR PAST
That the Planning Commission adopt Resolution No. 4146, recommending that the
Tustin City Council adopt Ordinance No. 1380, amending Tustin City Code Sections
3121, 3141, 3711-3713, 9232, and 9297; repealing Part 2 of Chapter 6 of Article 3 of
the Tustin City Code; and adopting Part 6 of Chapter 6 of Article 3 of the Tustin City
Code to regulate massage establishments, therapists, and practitioners in accordance
with State law.
BACKGROUND AND DISCUSSION:
On September 27, 2008, the Governor signed Senate Bill (SB) 731 revising the
Business and Professions Code relating to massage therapy (Attachment B). In part,
the newly enacted legislation:
o Provided for the State certification of massage practitioners and therapists by the
newly created Massage Therapy Organization (now referred to as the California
Massage Therapy Council, or CAMTC), a nonprofit organization, and prohibited
cities and counties from enacting ordinances regulating the practice of massage
by a certificate holder;
o Limited cities and counties from enacting ordinances that require a license permit
or other authorization to practice massage by an individual who is certified.
Further, no provision of any ordinance enacted by the City that is in effect before
the effective date of the legislation that requires a license, permit or other
authorization to practice massage may be enforced against an individual who is
certified; and
o Limited cities and counties from adopting land use and zoning requirements
applicable to massage establishments or businesses that are different than the
requirements that are uniformly applied to other professional or personal services
businesses.
The CAMTC, beginning on September 1, 2009, was authorized by the State of
California to begin issuing massage practitioner and therapist certificates to qualified
individuals. Since September 1, 2009, any CAMTC certificated individual is exempt
Planning Commission Report
Cade Amendment 10-003
May 11, 2010
Page 2
from City massage technician licensing and testing requirements. As permitted by State
law, the City is permitted to enact licensing requirements for massage establishments
consistent with the provisions of SB 731.
In response to SB 731, the City Council adopted Urgency Ordinance No. 1368 on
August 4, 2009, which established interim regulations for massage establishments and
massage therapists that were consistent with State law. The City Council extended
Urgency Ordinance No. 1368 by adopting Urgency Ordinance No. 1371 on September
15, 2009. Urgency Ordinance No. 1371 will expire on August 4, 2010.
The City Attorney, in coordination with Community Development Department staff, has
prepared Code Amendment 10-003 to establish codified massage regulations that are
consistent with State law and that protect the health, safety, and welfare of massage
owners, operators, and technicians, employees, clients, and the general public.
Proposed Ordinance No. 1380 would require all massage therapists and practitioners in
the City of Tustin to be certified by the California Massage Therapy Council. Massage
therapists and practitioners who have valid, City of Tustin massage technician permits
on the effective date of Ordinance No. 1380 would be given a grace period until January
31, 2011, to allow them a reasonable amount of time to secure their certifications from
the California Massage Therapy Council. Owners and operators of massage
establishments who have valid City of Tustin massage operator permits would be
granted the same grace period. However, under the proposed ordinance, existing
massage owners and operators would be required to apply for and obtain new massage
establishment permits from the City. These establishment permits would be required to
be renewed annually.
In accordance with State law, proposed Ordinance No. 1380 would also amend the
City's Zoning Code to allow massage establishments as an outright permitted use,
rather than a conditionally permitted use, in the City's Retail Commercial (C-1 ), Central
Commercial (C-2), and Commercial General (CG) zoning districts. State law prohibits a
city from requiring a conditional use permit of a massage establishment that employs or
uses only State certified massage therapists and/or practitioners unless a conditional
use permit were also uniformly required of other professional or personal services
businesses.
Detailed findings in support of proposed Ordinance No. 1380 are contained within the
proposed ordinance (Attachment C.)
ENVIRONMENTAL ANALYSIS
Proposed Code Amendment 10-003 (Ordinance No. 1380) is exempt from
environmental review under CEQA pursuant to Section 15061(b)(3) of the State CEQA
Guidelines. This section provides that a project is exempt from environmental review
where it can be seen with certainty that there is no possibility that the activity in question
may have a significant effect on the environment. If approved, the proposed code
amendment would require all massage therapists and practitioners in the City of Tustin
Planning Commission Report
Code Amendment 10-003
May 11, 2010
Page 3
to be certified by the California Massage Therapy Council and would also amend the
City's Zoning Code to allow massage establishments as an outright permitted use in
several commercial zoning districts.
PROPOSED MASSAGE LEGISLATION
The Planning Commission should be made aware that changes in the regulation of
massage establishments are being considered by the State legislature at this time.
Assembly Bill (AB) No. 1822 is proposed urgency legislation introduced on February 11,
2010, that would transfer final approval authority of massage applications and other
specified duties from the CAMTC to local law enforcement agencies. Staff will continue
to monitor AB 1822 as it makes its way through the legislature. If AB 1822 becomes
law, staff may need to bring forward to the Planning Commission and City Council a
code amendment which addresses any new requirements it may impose.
PUBLIC NOTICE, CHAMBER OF COMMERCE REVIEW
A public notice was published in the Tustin News on April 29, 2010, informing the public
of proposed Code Amendment 10-003. Also, notices were mailed to all individuals
holding valid City of Tustin massage technician and massage operator permits. Copies
of the staff report and proposed Code Amendment 10-003 were forwarded to the
Chamber of Commerce prior to the Planning Commission's hearing on the matter.
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Scott Reekstin Elizabeth A. Binsack
Senior Planner Director of Community Development
Attachment A: Planning Commission Resolution No. 4146
Attachment B: Senate Bill No. 731
Attachment C: Code Amendment 10-003 (Ordinance No. 1380)
ATTACHMENT A
PLANNING COMMISSION
RESOLUTION NO. 4146
RESOLUTION NO. 4146
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
TUSTIN, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL
APPROVE CODE AMENDMENT 10-003 (ORDINANCE NO. 1380)
REPEALING PART 2 OF CHAPTER 6 OF ARTICLE 3 OF THE TUSTIN
CITY CODE, ADDING PART 6 OF CHAPTER 6 OF ARTICLE 3 OF THE
TUSTIN CITY CODE, AND AMENDING ARTICLE 3 AND ARTICLE 9 OF
THE TUSTIN CITY CODE RELATING TO THE REGULATION OF
MASSAGE ESTABLISHMENTS AND MASSAGE THERAPISTS AND
PRACTIONERS.
The Planning Commission does hereby resolve as follows:
I. The Planning Commission finds and determines as follows:
A. The City is authorized pursuant to Government Code Section 51031 to regulate
massage and massage establishments.
B. The State legislature has adopted Senate Bill 731 (Chapter 384, 2008 Statutes),
Business and Professions Code sections 4600 et seq., which establishes
statewide standards and certification procedures for massage practitioners and
therapists engaging in massage therapy.
C. When properly operated by trained personnel in accordance with the laws of the
State and the ordinances of the City, massage establishments provide beneficial
therapeutic services.
D. In the absence of regulation or effective enforcement, massage establishments
have permitted crimes such as prostitution and the use and sale of illegal drugs.
Such illegal activity has been documented by police reports in several cities in
Orange County. The establishment of reasonable standards for issuance of
massage establishment permits and restrictions on operations reduces the risks
of illegal activity.
E. 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. The restrictions and requirements
contained in Code Amendment 10-003 reduce the burdens on the City's police
personnel and permit the deployment of police personnel such that more serious
crimes may be prevented.
F. In response to SB 731, the Tustin City Council adopted Urgency Ordinance No.
1368 on August 4, 2009, which established interim regulations for massage
establishments and massage therapists that were consistent with State law.
Resolution No. 4146
Page 2
G. The Tustin City Council extended Urgency Ordinance No. 1368 by adopting
Urgency Ordinance No. 1371 on September 15, 2009. Urgency Ordinance No.
1371 will expire on August 4, 2010.
H. The permit requirements and restrictions imposed by Code Amendment 10-003
are reasonably necessary to protect the health, safety and welfare of the citizens
of the City.
The regulations and restrictions contained in Code Amendment 10-003 tend to
discourage massage establishments from degenerating into houses of
prostitution or sites for illegal drug use and sales, and the means utilized in Code
Amendment 10-003 bear a reasonable and rational relationship to the goals
sought to be achieved.
J. Code Amendment 10-003 has been prepared for Planning Commission
consideration and, upon the Planning Commission's supportive recommendation,
for adoption by the Tustin City Council.
K. Proposed Code Amendment 10-003 (Ordinance No. 1380) is exempt from
environmental review under CEQA pursuant to Section 15061(b)(3) of the State
CEQA Guidelines. This section provides that a project is exempt from
environmental review where it can be seen with certainty that there is no
possibility that the activity in question may have a significant effect on the
environment. If approved, the proposed code amendment would require all
massage therapists and practitioners in the City of Tustin to be certified by the
California Massage Therapy Council and would also amend the City's Zoning
Code to allow massage establishments as an outright permitted use in several
commercial zoning districts. The proposed code amendment would not have a
significant direct or indirect effect on the environment.
L. That on April 29, 2010, the City gave public notice of the holding of a public
hearing at which Code Amendment 10-003 would be considered by publishing in
a newspaper of general circulation, and by posting a notice at City Hall.
M. That the Tustin Planning Commission held a duly noticed public hearing on Code
Amendment 10-003 on May 11, 2010.
II. The Planning Commission hereby recommends that the Tustin City Council approve
Ordinance No. 1380 (Code Amendment 10-003).
Resolution No. 4146
Page 3
PASSED AND ADOPTED by the Planning Commission of the City of Tustin at a regular
meeting on the 11t" day of May, 2010.
ELWIN A. "AL" MURRAY
Chairperson
ELIZABETH A. BINSACK
Planning Commission Secretary
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
City of Tustin )
I, Elizabeth A. Binsack, the undersigned, hereby certify that I am the Planning
Commission Secretary of the City of Tustin, California, that Resolution No. 4146 was
duly passed and adopted at a regular meeting of the Tustin Planning Commission, held
on the 11 t" day of May, 2010.
ELIZABETH A. BINSACK
Planning Commission Secretary
ATTACHMENT B
SENATE BILL NO. 731
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HILL NUl03SR: SB 731 CHAPTSRgD 09/27/08
CHAPTSR 3a4
PILED ifITH SBCRSTARY OP STATE SBPTBI~BR
APPROVHD BY CiOVSRNOR 38PTS[4BSR 27, 100•
PABBBD TAB S8NAT8 AUGUST 19, 100•
PA88SD THB ABSBMBLY AUC~UBT 13, 1001
AMSNDSD IN A888MBLY AUCiUBT 8, 100•
AMSNDSD IN A388LlBLY JULY 9, 2007
AMENDED IN ASSSMBLY JUNS 25, 1007
AMBNDSD IN SBNATB MAY 8, 2007
AMBNDSD IN SENATE APRIL 26, 2007
AMSNDSD IN 38NAT8 APRIL 19, 2007
AMSNDSD IN 88NATB APRIL 16, 2007
INTRODUCED BY Senator Oropeza
FEBRUARY 13, 2007
17, 100•
An act to add and repeal Chapter 10.5 tcasrnsncing Mith Section
4600) of Division 1 of the Business and Professions Code, relating to
massage therapy.
L8f3ISLATIVS CO[BISSL ~ S DI(3B9T
SB 731, Oropsza. Alassage therapy.
8xisting law provides for the regulation of various healing arts
professionals, including physicians and surgeons, chiropractors,
physical therapists, and acupuncturists. 8xisting law authorises the
legislative body of a city or county to enact ordinances prrnriding
for the licensing and regulation of the business of massage rhea
carried oa within the city or county.
This bill could, commencing September i, 2009, provide for the
certification of massage practitioners and massage therapists by the
Massage Therapy Organization, which mould be a nonprofit organization
meeting specified requirements, and could impose certain duties on
the organization. Ths bill Mould require applicaat• for certification
to be le years of age or older, to meet specified educational
criteria, to provide to the organization and update certain
information, to provide fin9arprint• for submission to the Department
of Justice for a criminal background check, and to pay fees required
by the organization. The bill Mould require the Department of
Justice to review specified information and to provide to the
organization fitness determinations and certain other information.
The bill could allow the organization to take certain disciplinary
action against certificate holders and could require the organization
to take certain action with regard to suspending or revoking a
certificate if the certificate holder has been arrested for, and
charged with, specified crimes. The bill Mould make it an unfair
business practice for a person to state, advertise, or represent that
he or she is certified or licensed by a governmental agency as a
massage therapist or practitioner, or to make other false
representations, as specified. The bill Mould prohibit a city,
county, or city and county from enacting certain ordinances
regulating the practice of massage by a certificate holder, a•
specified. The bill Mould make its provisions subject to review by
the Joint Committee oa Boards, Coarnissions, and Consumer protection.
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The bill would repeal these provisions on January 1, 1016.
THS PEOPLE OF THS STATE OF CALIFORNIA DO ENACT A8 POLLONSs
SECTION 1. It is the intent of this act to create a voluntary
certification for the massage therapy profession that will enable
consumers to easily identify credible certified massage therapists;
assure that certified massage therapists have completed sufficient
training at approved schooles phase in increased education and
training standards coasistent with other etatest assure that massage
therapy can no longer be used as a subterfuge to violate subdivision
(a) or (b) of Section 647 of the Penal Coder and to provide a
self-funded nonprofit oversight body to approve certificatioa and
education requirements for massage therapists.
sSC. 2. Chapter 10.5 (commencing with Section 4600) is added to
Division 1 of the Business and Professions Code, to reads
CHAPTStt 10.5. MA88JIR3S THBRAPISTS
4600. As used in this chapter, the following terms shall have the
following meanings:
(a) "Approved school• or "approved massage school" means a
facility that meets minimum standards for training and curriculum in
massage and related subjects and that is approved by any of the
following:
(i) The Bureau for Private Postsecondary and Vocational Sducatioa
pursuant to former Section 9!739 of the Sducatioa Code prior to July
1, 2007, and as of the date on which an applicant mat the
requirements of paragraph (1) of subdivision (b) or subparagraph (A)
of paragraph (2) of subdivision (c) of Section 4601.
(1) The Department of Consumer Affairs.
(3) An institution accredited by the Accrediting Commission for
Senior Colleges and Universities or the Accrediting Commission for
Community and Junior Colleges of the Kestern Association of Schools
and Colleges aad that is oaa of the followings
(A) A public institution.
(B) An institution incorporated and lawfully operating as a
nonprofit public benefit corporation pursuant to Part 1 (commencing
with 9eetion 5110) of Division 1 of Title 1 of the Corporations Code,
and that is not managed by any entity for profit.
(C) A for-profit institution.
(D) An institution that does sot meet ell of the criteria in
subparagraph (B) that is incorporated and lawfully operating ae s
nonprofit public benefit corporation pureuaat to Part 2 (commencing
with Section 5110) o! Division 1 of Title i of the Corporations Code,
that hoe been in continuous operation since April 15, 1997, and that
is not managed by any entity for profit.
(4) A college or university of the state higher education system,
as defined in Section 100850 of the Education Code.
(5) A school of equal or greater training that is apprrnred by the
corresponding agency in another state or accredited by an agency
recognized by the United States Department of Education.
(b) •Compeasation• means the payment, loan, advance, doaatio~n,
contribution, depwit, or gift of money or anything of value.
(c) "Massage therapist,• "bodyworkar,• •bodywork therapist,• or
"massage and bodywork therapist• means a person who is certified by
the Massage Therapy Organization under subdivision (c) of 9ectioa
4601 and who administers massage for compensation.
(d) "Massage practitioner,• "bodywork practitioaer,• or "massage
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and bodywork practitioner" means a person who is certified by the
Massage Therapy Organization under subdivision (b) of Section 4601
and who administer massage for compensation.
(e) "Organization^ means the Massage Therapy Organization created
pursuant to thi• chapter, which shall be a nonprofit organization
exempt from tauation under Section 501(c)(3) of Title 26 of the
United states Code. The organization may commence activities as
authorized by thi• section once it ha• submitted a request to the
Internal Revenue Service seeking thi• exemption.
(f) "Registered school" means a facility that meets minimum
standards for training and cuzriculum in massage and related subjects
and that either was recognized by the Bureau for Private
Postsecondary and Vocational 8ducation pursuant to section 94931 of
the Education Code prior to July 1, 2007, and ae of the date on which
an applicant met the requirements of paragraph (]) of subdivision
(b) or subparagraph (A) of paragraph (]) of subdivision (c) of
Section 4601, or i• recognized by the Department of Consumer Affairs,
by as institution accredited by the senior cortmiseioa or the junior
commission of the vlestera llseociation of Schools and Colleges ae
defined in paragraph (]) of subdivision {a) of section 4600, by a
college or university of the state higher education systed a• defined
in section 100850 of the Sducatioa Code, or by a school of equal or
greater training that i• approved by the corresponding agency in
another state.
(g) For purposes of this chapter, the terms "massage" and
"bodywork" shall have the same meaning.
4600.5. (a) A Massage Therapy Organization, ae defined in
subdivision (e) of Section 4600, shall bs created and shall haw the
responsibilities and duties set forth in this chapter. The
organization msy take any reaeonabl• actions to carry out the
responsibilities and duties set forth in this chapter, including, but
not limited to, hiring staff and entering into contracts.
(b) (1) The organization shall be governed by a board o! directors
made up of tyro representatives selected by each professional
society, association, or other entity, whose membership i• comprised
of massage therapists and that chooses to participate in the
organisation. To qualify, a professional society, association, or
other entity shall have a dues-paying membership is California of at
least 1,000 individuals for the last three years, sad shall haw
bylaws that require its a~ember• to comply with a code of ethics. The
board of directors shall also include each of the following persons:
(A) One member selected by each statewide association of private
poetsec~dary schools incorporated on or before January 1, 2010,
whose member schools have togetlur had at least 1,000 graduates in
each of the previous three years from massage therapy programs
meeting the approval standards ^et forth in subdivision (a) of
Section 4600, except Eras those qualifying associations that choose
not to exercise thi^ right of selection.
(B) One member selected by the League of California Cities, unless
that entity chooses not to exercise this right of selection.
(C) One member selected by the California state Association of
Counties, unless that entity chooses not to exercise this right of
selection.
(D) One member selected by the Director of Consumer Affairs,
unless that entity chooses not to exercise this right of selection.
(S) One member appointed by the California Comawaity College
Chancellors Office, unles^ that entity chooses not to exercise this
right of selection. The person appointed, if any, shall not be part
of any massage therapy certificate or degree program.
The organizations bylars shall establish a process for appointing
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other professional diractor• a• determined by the board.
(1) The initial board of director shall establish the
organization, initiate the request for tax-exempt status from the
internal Revenue Service, and solicit input from the massage
community concerning the operations of the organization. The initial
board of directors, in it• discretion, may immediately undertake to
issue the certificate• authorized by thi• chapter after adopting the
necessary bylaws or other rules, or may establish by adoption of
bylaws the permanent governing structure prior to issuing
certificates.
(c) Tha board of directors shall establish fee^ reasonably related
to the cost of providing service• and carrying out its ongoing
responsibilities and duties. Initial and renewal fees shall be
established by the board of directors annually.
(d} The meetings of the organization shall bs subject to the rules
of the Bagley-Keene Open Meetings Act (Article 9 (commencing with
Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 1 of the
c3overnmsat Code).
4601. (a} The organization shall issue a certificat• under this
chapter to as applicant who satlsfie• the requiremsnt• of this
chapter.
(b) (1) In order to obtain certification a• a massage
practitioner, an applicant shall submit a written application and
provide the organization with satisfactory evidence that hs or she
meets all of the fallowing requirements:
(A) The applicant is 18 years of age or older.
(B) The applicant has successfully completed, at a single approved
school, curricula. in massage and related subjects totaling a minimum
of 250 hour that incorporates appropriate school assessment of
student knowledge and skills. included in the hours shall be
instruction addressing anatomy and physiology, contraindications,
health and hygiene, and business and ethics, with at least 100 hours
of the required minimum 250 hours devoted to these curriculum areas.
(C) All fee• required by the organization have been paid.
(1) New certificates shall not be issued pursuant to this
subdivision after December 31, 2015. certificate• issued pursuant to
this section or subdivision (a) or (c) of 3ectioa 4604 on or before
December 31, 1015, shall, after December 31, 2015, be renewed without
any additional educational requirements, provided that the
certificate holder continues to be qualified pursuaat.to this
chapter.
(c) in order to obtain certification as a massage therapist, as
applicant shall submit a written application and provide the
organization with satisfactory evidence that he or she meets all of
the following requiremeats~
(i) The applicant f• 18 years of age or older.
(1) The applicant satisfies at least one of the following
requirements:
(A) He or she has successfully comipleted'the curricula in massage
and related subjects totaling a minimum of 500 hours. Of this 500
hours, a minimium of 150 hours shall be fzos approved schools. The
remaining 150 hours required may be secured either Eton approved or
registered schools, or from continuing education prrnrider approved
by, or registered with, the organization or the Department o!
Consumer Affairs. After December 31, 1015, applicant^ may only
satisfy the curricula in massage and related subjects from approved
schools.
(8) The applicant has passed a massage and bodywork competency
assessment examination that meets generally recognized psychon-etric
principles and standards, and that is approved by the board. The
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successful completion of this examination may have been accomplished
before the date the organization is authorized by thi• chapter to
begin issuing certificates.
(3) All fees required by the organisation have been paid.
(d) The organization shall issue a certificate to an applicant who
maet• the other qualifications of thi• chapter and holds a current
and valid registration, certification, or license from any other
state whose licensure requirement• meet or exceed those defined
within this chapter. The organisation shall have discretion to give
credit for comparable academic work completed by an applicant in a
program outside of California.
(e) An .applicant applying for a massage therapist or massage
practitioner certificat• shall file with the organisation a written
application provided by the organization, showing to the satisfaction
of the organization that he or she meets all o! the requirements of
this chapter.
(f) Any certification issued under this chapter shall bs subject
to renewal every taro year in a manner prescribed by the
organisation, and shall expire unless renewed in that manner. The
organization may provide for the lat• renewal of a license.
(g) (i) The organisation shall have the responsibility to
determine that the school or schools from which an applicant has
obtained the education required by this chapter meet the requirements
of this chapter. if the organisation has any reason to question
whether or not the applicant received the education that i^ required
by this chapter from the school or schools that the applicant is
claiming, the organization shall investigate the facts to determine
that the applicant received the required education prior to issuing a
certificate.
(]) For purposes of paragraph (1) and any other provision of this
chapter for which the organisation i• authorized to receive factual
information a• a condition of taking any action, the organization
shall have the authority to conduct oral interviews of the applicant
and others or to make any investigation deemed necessasy to establish
that the information received is accurate and satisfies any criteria
established by this chapter.
4601.1. No certificates shall be issued by the organisation
pursuant to this chapter prior to eeptember 1, 1009.
4601.3. ta) Prior to issuing a certificate to the applicant or
designating a custodian of records, the organisation shall require
the applicant or the custodian of recrorda candidate to subslt
fingerprint images 1n a fors consistent with the requirements of this
section. The organisation shall subsit the fingerprint images and
related information to the Department of Jhstics for t)u purpose of
obtaining information a• to tls~ existence and nature of a record of
state and federal level convictions and of state and federal level
arrests for which the Department of Justice establishes that the
applicant or candidate was released on bail or on his or her own
recognizance pending trial. Requests for federal lav~l criminal -
offender record information received by the Department of Justice
pursuant to this section shall be forwarded to the Federal Bureau of
Investigation by the Department of Justice. The Department of Justice
shall reviear the information returned fros the Federal Bureau of
Investigation, and shall compile and disseminate a fitness
determination regarding the applicant or candidate to the
organization.
(b) The Department of Justice shall provide-information to the
organization pursuant to subdivision (p) of Section 11105 of the
Penal Code.
(c) The Department of Justice sad the organization shall charge a
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fee sufficient to cover the cost of processing the request for state
and federal level criminal offender record information.
(d) The organization shall request subsequent arrest notification
service from the Department of Justice, a• provided under Section
11305.2 of the Penal Coda, for all applicant• for licensurs or
custodian of records candidates for whom fingerprint images and
related information are submitted to conduct a search for state and
federal level criminal offender record information.
(e) Thi• section shall become operative September 1, 1009.
4601.4. Organization directors, employees, or volunteer
individuals may undergo the background investigation process
delineated in Section 4601.3.
4602. (a) The organization may discipline a certificate holder by
any, or a combination, of the following methods
(i) Placing the certificate holder on probation.
(2) Suspending the certificate and the rights conferred by this
chapter oa a certificat• holder !or a period not to exceed one year.
(3) Revoking the certificate.
(43 Suspending or staying the disciplinary order, or portions of
it, with os without conditions.
(5) Taking other action a• the organization, a• authorised by this
chapter or its bylaws, deems proper.
(b) The organization may issue an initial certificate on
probation, with specific terms and conditions, to any applicant.
(c) (1) Notrithstanding any other provision of law, if the
organization receives notice that a certificate holder has been
arrested and charges have been filed by the appropriate prosecuting
agency against the certificate holder alleging a violation of
subdivision (b) of Section 64'7 of the Penal Code or any other offense
described in subdivision (h) of Section 4603, the organization shall
take all of the following actions:
(A) immediately suspend, on as interim basis, the certificate of
that certificat• holder.
(B) Notity the certificat• holder within 10 days at the addres^
last filed with the organization that the certificate has been
suspended, and the reason for the suspension.
(C) Notity any business within 10 days that the organization hoe
in its records as employing the certificate holder that the
certificat• has been suspended.
(2) Upon notice to the organization that the charges described in
paragraph ti) have resulted in a conviction, the suspended
certificate shall bacoms subject to permanent revocation. Tha
organization shall provide notice to the certificate holder within 10
days that it has evidence of a valid record of conviction and that
the certificate will be revoked unlas• the certificate holder
provides evidence within 15 days that the conviction i• either
invalid or that the information i• otherwise erroneous.
(3) Upon notice that the charges have resulted in an acquittal, or
have otherwise been dismissed prior to conviction, the certificate
shall be immediately reinstated sad the certificate holder and any
business that received notice pursuant to subparagraph (C) of
paragraph (1) shall be notified of the reinstatement within 10 days.
4602.5. (a) Upoa the request of any law enforcement agency or any
other representative of a local government agency with
responsibility for regulating, or administering a local ordinance
relating to, massage or massage businesses, the organization shall
provide information concerning a certificate holder, including, but
nvt limited to, the current statue of the certificate, any history of
disciplinary actions taken against the certificate holder, the home
and work addresses of the certificate holder, and any other
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information in the organiaatioa's possession that is necessary to
verify Pacts relevant to administering the local ordinance.
(b) Ths organization shall accept information provided by any lar
enforcement agency or any other representative of a local government
agency rith responsibility for regulating, or administering a local
ordinances relating to, massage or massage businesses. The
organization shall have the responsibility to revier any information
received and to take any actioas authorized by this chapter that are
warranted by that information.
4603. It is a violation of thi• chapter for a certificate holder
to commit, and the organization may deny an application for a
certificate or discipline a certificate holder for, any of the
folloriaq:
(a) Unprofessional conduct, including, but not limited to, denial
of licensure, revocation, suspension, restriction, or any other
disciplinary action against a certificate holder by a~thar state or
territory of the United States, by any other government agency, or by
another Glifornia health care professional licensing board. A
certified copy of the decision, order, or judgment shall be
conclusive evidence of these actioas.
(b) Proauriaq a certificate by fraud, misrepresentation, or
mistake.
(c) violating or atten~ting to violate, directly or indirectly, or
assisting is or abetting the violation of, or conspiring to violate,
any provision or term of thi• chapter or any rule or bylar adopted
by the organization.
(d) Conviction of any felony, or conviction of a misdemeanor that
is substantially related to the qualifications or duties of a
certificate holder, in rhicb event the record of the conviction shall
be conclusive evidence of the crime.
(e) impersonating as applicant or acting as a proxy for an
applicant in any examination referred to under this chapter for the
issuance of a certificates.
(f) Impersonating a certified practitioner or therapist, or
permitting or allowing an uncertified perscn to use a certificate.
(g) Conaoittiag a~- fraudulent, dishonest, or corrupt act that i•
substantially related to the qualifications or duties of a
certificate holder.
' (h) Comaittiag say act puaishable as a sexually related crime.
4603.1. (a) No certificates holder or certificate applicant may be
disciplined or denied a certificate pursuant to Section 4603 except
according to procedures satisfying the requirements of this section,
A denial or discipline not in accord rith this section or subdivision
(c) of Sectioa 4601 shall be void and rithout effect.
(b) Auy certificate applicant denial or certificate holder
discipline shall be done in good faith and in a fair and reasonable
manner. Any procedute that conforms to the requiremeats of
subdivision (c) is fair and reasonable, but a court may also find
other procedures to be fair and reasonable rhea the full
circumstances of the certificate denial or certificate holder
discipline are considered.
(c) A procedure is fair and reasonable when the procedures is
subdivision (c) of Section 4601 are follored, or if all of the
folloring apply:
(i) The provisions of the procedure have been set forth in the
articles or bylaws, or copies of those provisions are sent annually
to all the members as required by the articles or bylars.
(1) It provides the giving of 15 days prior notice o! the
certificate denial or certificate holder discipline and the reasons
therefor.
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(3) It provide• an opportunity for the certificate applicant or
certificat• holder to be heard, orally or in writing, not less than
five days before the effective date of the certificate denial or
certificate holder discipline by a person or body authorized to
decide that the proposed certificate denial or certificate holder
discipline not take place.
(d) Any notice required under this section may be given by any
method reasonably calculated to provide actual notice. Any notice
given by mail mast be given by first-class or certified mail sent to
the last address of the certificate applicant or,certificats holder
shown on the organization's records.
(e) Any action challenging a certificate denial or certificate
holder discipline, including any claim alleging defective notice,
shall bs commenced within one year after the date of the certificate
denial or certificate holder discipline. If the action is successful,
the court may order any relief, including reinstatement, that it
finds equitable under the circumstances.
(f) This section governs only the procedures for csrtificat•
denial or certificate holder discipline and not the substantive
grounds therefor. A certificate denial or certificate holder
discipline based upon substantive grounds that violates contractual
or other rights of the member or is otherwise unlawful i• not made
valid by compliance with this section.
(g) A certificate applicant or certificate holder who is denied or
disciplined shall be liable for any charges incurred, services or
benefits actually rendered, dues, asaeeemants, or fees incurred
before the certificate denial or certificate holder discipline or
arising free contract or otherwise.
4603.5. It shall be the responsibility of any certificate holder
to notify the organisation of his or her home address, a• well as the
addres^ of any business establishment where he or she regularly
works as a massage therapist or massage practitioner, whether as as
employee or as as independent contractor. A certificate holder shall
notify the organization within 30 days of changing either his or her
home address or the address of the business establishment where he or
she regularly works a• a massage therapist or massage practitioner.
460. (a) Notwithstanding Section 4601, the organization may
grant a massage practitioner certificate to any person who applies oa
or before January 1, 201, with one of the following:
(1) A current valid massage permit or license Eros a California
city, county, or city and county and documentation evidencing that
the person has completed at least a 100-hour course in massage at a
state-approved or registered school, or out-ol-state school
recognized by the organization as providing coalarable education, has
been practicing for at least three years, and has provided at least
1,000 hours of massage to members of the public for compensation.
(Z) Documentation evidencing that the person has completed at
least a 100-hour course in massage at a state-approved or registered
school, or out-of-state school recognized by the organization as
providing comparable education, has been practicing for at least
three years, and ha^ provided at least 1,750 hours of massage to
member of the public !or caepeasatioa. For purposes of this
subdivision, evidence of practice shall include either of the
following:
(A) A M-4 form or en~loyer'^ affidavit containing the dates of the
applicant's employment.
(B) Tax returns indicating self-emglaymeat ae a massage
practitioner or mnseage therapist or any other title that may
demonstrate experience in the field of massage.
(3) Documentation evidencing that the person holds a current valid
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certificate o! authorization as an instructor at an approved massage
school, or holds the position of a massage instructor at a school
accredited by an agency recognized by the United States Department of
Education, or college^ and universities of the state higher
education system, as defined in Section 100850 of the 8ducation Code.
(b) (i) After reviewing the information submitted under
aubdivisioa (a), the organization may require additional information
necessary to enable it to determine whether to issue a certificate.
(1) If an applicant under paragraph (1) of subdivision (a) or
paragraph (1) of subdivision (c} has not complied with section
4601.3, or its equivalent, when obtaining a license or permit from
the city, county, or city and county, the organization shall require
the applicant to comply with Section 4601.3 prior to issuing a
certificate pursuant to this section.
(c) (1) A person applying for a massage practitioner certificate
on or before January 1, 1011, who meets the educational requirements
of either paragraph (1) or (1) of subdivision (a), but who has not
caa~leted the required number of practice hours prior to submitting
an application pursuant to this section, may apply for a conditional
certificate.
(1) Aa applicant for a conditional certificate shall, within five
years of being issued the conditional certificate, ~ required to
complete at least 30 hours of additional education per year from
schools or courses described in paragraph (5) until he or she has
completed a total of at least 150 hours of education, which may
include massage education hours previously completed in a massage
course described in either paragraph (1} or (1) of subdivision (a).
(3) Upon successful completion of the requirements of this
subdivision, the organization shall issue a certificate to the person
that i^ not conditional.
(4) The organization shall immediately revoke the conditional
certificate issued to any person pursuant to this subdivision if the
time period specified 1n paragraph (1) expires without proof of
completion of the
requirements having been filed with the organization.
(5) Any additional education required by this section may be
completed through courses provided by any of the following:
(A) An approved school.
te) A registered school.
(C) A provider approved by, or registered with, the organization
or the Department of Caasumer Affairs.
(D) A provider that establishes to the satisfaction of the
organization that its course or courses are appropriate educational
programs for thi^ purpose.
(d) Nothing in this section shall preclude the organization from
exercising any power or authority conferred by this chapter with
respect to a conditional certificate holder.
4605. It is an unfair business practice for any person to state
or advertise or put out any sign or card or other device, or to
represent to the public through any print or electronic media, that
he or she is certified, registered, or licensed by a governmental
agency as a massage therapist or massage practitioner.
4606. it is an unfair business practice for ary person to hold
oneself out or use the title of "certified massage therapist" or
"certified massage practitioner or any other terra, such as
"licensed,• •registered," or •CMP,• that implies or suggests that the
person is certified a^ a massage therapist or practitioner without
meeting the requirements of Section 4601 or 4604.
4607. The superior court in and for the county in which any
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person acts as a massage practitioner or massage therapist in
violation o! the provision• of thi• chapter, may, upon a petition by
any person, issue an injunction or other appropriate order
restraining the conduct. The proceedings under this paragraph shall
be governed by Chapter 3 (commencing with Section 575) of Title 7 of
Part ] of the Code of Civil Procedure.
4608. Nothing in this chapter is intended to limit or prohibit a
person who obtains a certification pursuant to thi• chapter from
providing Services pursuant to, and in compliance with, Sections
2053.5 and Zo53.6.
4617. (a) (1) The holder of a certificate issued pursuant to thi^
chapter shall have the right to practice massage, consistent with
this chapter and the qualifications established by hi• or her
certification, in any city, county, or city and county in this state
and shall not be required to obtain any other license, permit, or
other authorization, except as provided in this section, to engage in
that practice.
(7) Notwithstanding any other provision of law, a city, county, or
city and county shall not enact an ordinance that requires a
license, permit, or other authorisation to practice massage by an
individual who is certified pursuant to this chapter and who i•
practicing consistent with the qualifications established by hi• or
her certification. No provision of any ordinance enacted by a city,
county, or city and county that i• in effect before the effective
date of this chapter, and that zequire• a license. permit, or other
authorization to practice massage, may be enforced against an
individual who is certified pursuant to this chapter.
(3) Except a• provided in subdivision (b), nothing in thi• eectioa
shall be interpreted to prevent a city, county, or city and county
from. adopting or enforcing any local ordinance governing zoning,
business licensing, and reasonable health and safety requirements for
massage establishment• or businesses. Subdivision (b) shall not
apply to any message establishment or bueines• that employs oz uee•
persons to provide massages services rho are not certified pursuant to
this chapter.
(b) (1) Thi• subdivision shall apply only to massage
establishments or businesse• that are sole proprietorships, where the
sole proprietor is certified pursuant to thi• chapter, and to
massage establishments.or businesses that employ or use only persons
certified pursuant to thi• chapter to provide massage •ervices. For
purposes o! this subdivision, a sole proprietorship is a bueines•
where the owner i• the only person employed by that bueines• to
provide massage services.
(7) (A) Any massage sstablisha~ent or business described in
paragraph (1) shall maintain on its premises evidence for review by
local authorities that demonstrates that all persons providing
massage services are certified.
(B) Nothing in this section shall preclude a city, county, or city
and county from including in a local ordinance a provision that
requires a business described in paragraph (3) to file copies or
provide other evidence of the certificates held by the persons who
are providing massage services at the business.
(3) A city, county, or city and county may charge a massage
bueines• or establishment a buainees licensing fee sufficient to
cover the coats of the bueines• licensing activities established by a
local ordinance described in this section.
(4) Nothing in this eectioa shall prohibit a city, county, or city
and county from adapting land use and zoning requirements applicable
to massage eetabliehmente or businesses, prrnrided that these
requirements shall be no different than the requirements that are
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uniformly applied to other professional or personal eervica•
businesses.
(5) Local building coda or physical facility requirements
applicable to massage establishment• or businesse• shall not require
additional restroom, shower, or other facilities that are not
uniformly applicable to other professional or personal service
businesses, nor shall building or facility requirements be adopted
that (A) require unlocked doors when there is no staf! available to
assure security for clients and massage staff who are behind closed
doors, or (H) require windows that provide a vier into massage rooms
that interfere with the privacy of clients of the massage business.
(6) A city, county, or city and county may adopt reasonable health
and safety requirements with respect to massage establishments or
businesses, including, but not limited to, requirements for
cleanliness of massage rooms, towels and linens, and reasonable
attire and personal hygiene requiremsnts for persons providing
massage services, provided that nothing in this paragraph shall be
interpreted to authorize adoption of local ordinances that impose
additional qualitications, such a• medical examinations, background
checks, or other criteria, upon any person certified pursuant to this
chapter.
(7) Nothing in this section shall preclude a city, county, or city
and county from doing any of the followings
(A) Requiring an applicant for a business license to operate a
massage business or establishment to fill out an application that
requests the applicant to provide relevant information.
(H) Making reasonable investigations into the information so
provided.
(C) Denying or restricting a business license if the applicant
has provided materially !else information.
(c) An owner or operator of a massage business or establishment
subject to subdivision (b) shall be responsible for the conduct of~
all employees or independent contractors working o~n the premises of
the business. Nothing in this section shall preclude a local
ordinance from authorising suspension, revocation, or other
restriction of a license or permit issued to a massage establishment
or business if violations of this chapter, or of the local ordinance,
occur an the business premises.
(d) Nothing in this section shall preclude a city, county, or city
and county Eros! adopting a local ordinance that i• applicable to
massage businesses or establishments described in paragraph (i) of
subdivision (h) and that does either of the following:
(i) Provides that duly authorized officials of the city, county,
or city and county have the right to conduct reasonable inspections,
during regular business hours, to ensure compliance with this
chapter, the local ordinance, or other applicable fire and health and
safety requirements.
(~) Requires an owner or operator to notify the city, county, or
city and county of any intention to rename, change managesisnt, or
convey the business to another person.
4613. (a) Nothing in this chapter shall restrict or limit in any
way the authority of a city, county, or city and county to adopt a
local ordinance governing any person who is not certified pursuant to
this chapter.
(b) Nothing in this chapter is intended to affect the practice
rights of any person licensed by the state to practice or perfona any
functions or services pursuant to that license.
4615. This chapter shall be subject to the review required by
Division 1.1 (camsencing with Section 473).
4620. This chapter shall remain in effect only until January i,
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aoia, and as of that date is repealed, unless a later enacted
statute, that is enacted before January i, a016, deletes or extends
that date.
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ATTACHMENT C
CODE AMENDMENT 10-003
(ORDINANCE NO. 1380)
ORDINANCE NO. 1380
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF TUSTIN, CALIFORNIA, REPEALING
PART 2 OF CHAPTER 6 OF ARTICLE 3 OF THE
TUSTIN CITY CODE, ADDING PART 6 OF
CHAPTER 6 OF ARTICLE 3 OF THE TUSTIN CITY
CODE, AND AMENDING ARTICLE 3 AND
ARTICLE 9 OF THE TUSTIN CITY CODE
RELATING TO REGULATION OF MASSAGE
ESTABLISHMENTS AND MASSAGE THERAPISTS
AND PRACTITIONERS
City Attorney Summary
This ordinance updates the City's exisfing City Code
regulations regarding massage establishments and
massage therapists and massage practitioners in order to
conform with recently enacted changes in State law. This
ordinance also requires alZ massage therapists and
massage practitioners to have massage therapist or
massage practitioner certificates issued by the Massage
Therapy Organization and eliminates the City's local
massage technician permit process. Owners and operators
of massage establishments are required to maintain City
massage establishment permits.
The City Council of the City of Tustin finds and declares as follows:
WHEREAS, the permit requirements and restrictions imposed by this Ordinance
are reasonably necessary to protect the health, safety and welfare of the citizens of the
City;
WHEREAS, the City is authorized pursuant to Government Code section 51031
to regulate massage and massage establishments. However, the State legislature has
adopted SB 731 (Chapter 384, 2008 Statutes), Business and Professions Code sections
4600 et seq., which establishes statewide standards and certification procedures for
massage practitioners and therapists engaging in massage therapy. Accordingly, this
Ordinance is intended to be implemented consistent with SB 731;
WHEREAS, when properly operated by trained personnel in accordance with the
laws of the State and the ordinances of the City, massage establishments provide
beneficial therapeutic services to the benefit of many residents of the City and
surrounding communities. However, in the absence of regulation or effective
enforcement, massage establishments have permitted crimes such as prostitution and the
use and sale of illegal drugs. Such illegal activity has been documented by police reports
in several cities in Orange County. The establishment of reasonable standards for
Ordinance 1380 -Page 1 of 23
bsossos
issuance of massage establishment permits and restrictions on operations reduces the
risks of illegal activity;
WHEREAS, 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. The restrictions and requirements contained in
this Ordinance reduce the burdens on the City's police personnel and permit the
deployment of police personnel such that more serious crimes maybe prevented;
WHEREAS, the regulations and restrictions contained in this Ordinance tend to
discourage massage establishments from degenerating into houses of prostitution or sites
for illegal drug use and sales, and the means utilized in this Ordinance bear a reasonable
and rational relationship to the goals sought to be achieved;
WHEREAS, on May 11, 2010, the Planning Commission conducted a noticed
public hearing to consider the amendments proposed in this Ordinance, including
proposed amendments to the Zoning Code, regarding massage establishments, and
recommended
WHEREAS, on , 2010, the City Council proceeded with the first reading of
this Ordinance and conducted a public hearing regarding the proposed Ordinance and
zoning code amendments, and directed
WHEREAS, in order to comply with the requirements of SB 731, Section I of this
Ordinance repeals existing provisions in Part 2 of Chapter 6 of Article 3 of the Tustin
City Code regarding massage establishments and massage technicians, and Section II of
this Ordinance replaces those provisions with a new Part 6 of Chapter 6 of Article 3 of
the Tustin City Code entitled "Massage Establishments";
WHEREAS, Sections III, N and VII of this Ordinance make related changes to
apply throughout Article 3 (Sections 3121, 3141, 3712, 3713, and 3714);
WHEREAS, Sections V and VI of this Ordinance make amendments to the
zoning code provisions of the Tustin City Code and its Definitions (Section 9297) to
conform to the requirements of SB 731 [California Business and Professions Code
Section 4612(b)(4)] that zoning requirements applicable to massage establishments are
"no different than the requirements that are uniformly applied to other professional or
personal services businesses", and other conforming changes;
WHEREAS, the provisions in this Ordinance shall take effect on the 31St day after
adoption;
WHEREAS, the City will cease issuance of massage technician permits under the
repealed provisions of the Tustin City Code on the effective date of this Ordinance, and
thereafter all massage therapists and massage practitioners will be required to obtain and
Ordinance 1380 -Page 2 of 23
680880.5
maintain certification by the statewide Massage Therapy Organization certification
process established under SB 731;
WHEREAS, massage technicians who have valid, existing massage technician
permits issued by the City under the provisions of the Tustin City Code on the effective
date of this Ordinance shall have a grace period until January 31, 2011, to allow them
reasonable time to secure their MTO certifications;
WHEREAS, the owners and operators of massage establishments that are
operated pursuant to existing, valid massage operator permits under the provisions of the
Tustin City Code on the effective date of this Ordinance shall have a grace period until
January 31, 2011 to apply for and obtain from the City their new massage establishment
permits required hereunder;
THEREFORE, the City Council of the City of Tustin hereby ordains as
follows:
SECTION I. Part 2 of Chapter 6 of Article 3 of the Tustin City Code, entitled
"Massage Establishments and Massage Technicians" shall be repealed in its entirety, on
the effective date of this Ordinance.
SECTION IL Part 6 of Chapter 6 of Article 3 of the Tustin City Code entitled
"Massage Establishments" is hereby adopted, as of the effective date of this Ordinance,
to read in its entirety as follows:
PART 6 MASSAGE ESTABLISHMENTS
3661 Purpose and intent.
It is the purpose and intent of this Part to regulate the operation of massage
establishments in the City for the protection of the health, safety and welfare of its
operators, massage therapists and massage practitioners, employees, clients, and the
general public.
3662 Definitions .
The definitions set forth in Section 3141 of the Tustin City Code shall apply in
this Chapter. In addition, unless the particular provision or the context otherwise
requires, the definitions and provisions contained in this section shall govern the
construction, meaning, and application of the following words and phrases used in this
chapter.
"Certified" shall refer to one who has been issued a valid certificate in accordance
with Sections 4600 through 4620 of the California Business and Professions Code.
"Operator" means the individual who actively manages the massage
establishment. Evidence of active management includes but is not limited to evidence
that the individual has power to direct or hire, schedule, and dismiss employees and
Ordinance 1380 -Page 3 of 23
680880.5
independent contractors, control hours of operation, and create policy or rules. An
operator may also be an owner, however, an owner is only the "operator" for purposes of
this Part if the owner actively manages and is regularly present at the location of the
massage establishment more hours per week than any other individual who participates in
the management of the massage establishment. If more than one person is a manager of a
massage establishment, the "Operator" is the individual who actively manages and is
regularly present at the location of the massage establishment more hours per week than
any other individual manager. For purposes of enforcement of the requirements of this
Part, "Operator" refers to the individual identified as the operator in the most recently
issued massage establishment permit.
"Owner" means the person(s) who owns the massage establishment as identified
on the City of Tustin massage establishment permit.
3663 Massage certification required; Massage establishment permit required.
(a) It shall be unlawful for any person to engage in, conduct or carry on, permit to
engage in, in or upon any premises within the City of Tustin the business of providing
massages in exchange for compensation unless the person providing massages is
currently certified as a massage practitioner or massage therapist by the California
Massage Therapy Organization.
(1) Any person who possesses a "Massage Technician Permit" issued
by the City of Tustin that is current and valid as of the effective date of this Ordinance,
shall be exempt from the requirements of subsection (a) of this Section until January 31,
2011. Thereafter, all such persons shall be certified as required in subsection (a).
(b) It shall be unlawful to commence or to continue to operate a massage
establishment in or upon any premises within the City of Tustin without having a valid
massage establishment permit issued pursuant to this Part. It shall be unlawful to operate
a massage establishment at any time while a massage establishment permit is expired,
cancelled, suspended or otherwise invalid.
(1) Massage establishments holding a valid Tustin massage
establishment permit as of the effective date of this Ordinance shall be exempt from the
requirements of subsection (b) of this Section until January 31, 2011. Thereafter, all such
persons shall be required to comply with subsection (b).
(c) No massage establishment permit maybe 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 and 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
Ordinance 1380 -Page 4 of 23
680880.5
the Director, shall be placed in the name of the surviving partner(s). 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, or 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. Except as expressly
provided herein, a massage establishment may not be operated under a new owner or new
operator until a new massage establishment permit is issued by the City of Tustin
identifying both the new owner and new operator.
(d) The operator identified in a massage establishment permit may become the
owner and operator thereunder, and without the issuance of a new massage establishment
permit, by notifying the City in writing of the change in ownership.
3664 Massage establishment or services - Massage Establishment Permit
Application Reauirements.
(a) Prior to commencing operation of a massage establishment, the owner and
operator desiring to operate the massage establishment shall apply for and obtain a
massage establishment permit. The permit shall be valid for the period of time set forth
for massage establishment permits in Section 3713. The application for the massage
establishment permit for each massage establishment shall be made jointly by, and shall
be signed by, both the owner and operator of that massage establishment.
(b) All applicants for massage establishment permits shall provide the following
relevant information about the owner, operator and establishment:
(1) Information regarding the type of ownership of the business, i.e.,
whether the business is owned by individual, partnership, limited liability
company (LLC), corporation, or otherwise:
a. If the establishment is owned by a corporation, the name of
the corporation shall be set forth exactly as shown in its articles of
incorporation together with the state and date of incorporation and the
name and residence address of each of its current officers and directors,
and of each stockholder holding more than five (5) percent of the stock of
that corporation.
b. If the establishment is owned by a partnership or limited
partnership, the application shall set forth the name and residence address
of each of the partners, including limited partners, if any. In addition, if
the establishment is owned by a limited partnership, it shall furnish a copy
of its certificate of limited partnership filed with the Secretary of State. In
addition, if one (1) or more of the partners is a corporation or LLC, the
provisions of this subsection pertaining to corporations and LLCs shall
apply.
c. If the establishment is owned by an LLC, the application
shall set forth the name and residence address of each manager and of
Ordinance 1380 -Page 5 of 23
680880.5
each member. In addition, if the establishment is owned by an LLC, it
shall furnish a copy of its articles of organization filed with the State. In
addition, if one (1) or more of the members is a corporation or limited
partnership, the provisions of this subsection pertaining to corporations
and partnership shall apply.
d. If the establishment is owned by an individual, the
application shall set forth the full name and residence address of the
owner, including all aliases.
(2) If the establishment is owned by a corporation, partnership, LLC,
or other entity (other than individual ownership), that entity shall designate one of
its officers (in the case of a corporation), general partners (in the case of
partnerships) or managers (in the case of an LLP) to act as its responsible
managing officer. Such responsible managing officer shall complete and sign all
application forms required for an individual applicant under this Part.
(3) The precise name under which the massage establishment is to be
conducted.
(4) The complete address and telephone numbers of the massage
establishment.
(5) A complete current list of the names, all aliases, and current
residence addresses of:
a. the operator;
b. all massage therapists and massage practitioners who will
perform massages at the massage establishment, whether as employees or
independent contractors of the massage establishment;
c. all other proposed employees in the massage establishment;
d. if the massage establishment will be managed in part by
individuals other than the owner or operator, then the list shall include the
name and residence address(es) of all such manager(s). A manager is the
person(s) designated by the operator of the massage establishment to act
as the representative and agent of the operator in managing day-to-day
operations of the massage establishment. (See definition of "Operator" in
section 3662.)
Owners and operators identified in the massage establishment
permit shall be responsible for the actions of all managers, massage
therapists, massage practitioners, employees and independent contractors
who are operating at, or in connection with, the massage establishment,
whether or not the owner or operator is aware of the actions. (See sections
Ordinance 1380 -Page 6 of 23
680880.5
3669 - 3669.2 regarding enforcement in the event of violations of this
Part.)
(6) For each massage therapist and massage practitioner who will
perform massage services at the massage establishment:
a. a copy of the massage therapist's or massage practitioner's
MTO certification; and
b. a color passport-size photograph of the certificate holder.
(7) The name and address of the owner and lessor of the real property
upon or in which the business is to be conducted. If the applicant is not the legal
owner of the property, the application must be accompanied by a copy of the lease
and a signed acknowledgment from the owner of the property that a massage
establishment will be located on his/her property.
(8) If the massage establishment is owned by .a corporation, LLC,
partnership or other entity (other than an individual), the application shall include
a description of any other business owned or operated by the owner, whether
located on the same premises, or elsewhere within the State of California.
(9) If the owner of the massage establishment is an individual who is
not certified by the MTO, the application shall include all of the following
information: (individual owners who are certified by the MTO are required to
obtain a massage establishment permit but are not required to provide the
information required in subsections (a) through (k) below):
a. Full complete name and all aliases used by the owner;
b. All residential addresses for eight (8) years immediately
preceding the date of the application;
c. A description (including name, type of business, address
and phone numbers) of any other business owned or operated by the
owner, whether located on the same premises, or elsewhere within the
State of California;
d. Proof of the owner's date of birth;
e. Height, weight, color of hair and eyes, and sex of the
owner;
f. Two (2) front-facing portrait color photographs at least two
(2) inches by two (2) inches in size;
Ordinance 1380 -Page 7 of 23
bsosso.s
g. The owner's complete business, occupation, and
employment history for eight (8) years preceding the date of application:
h. The complete massage permit history of the owner;
whether the owner 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, or
suspended; or if a vocational professional license or permit was denied,
revoked, or suspended; and the reason therefor;
i. All criminal convictions of the owner, including pleas of
polo contendere, within the last five (5) years, and the date and place of
each such conviction and reason therefor, including those dismissed or
expunged pursuant to Penal Code Section 1203.4, but excluding minor
traffic violations;
j. Evidence that a complete set of fingerprints of the owner
was taken through the Livescan service;
k. the owner's Social Security Number; and
1. Authorization for the City, its agents and employees to seek
verification of the information contained in the application.
(10) If the operator of the massage establishment is an individual who is
not certified by the MTO, the application shall include all of the following
information (individual operators who are certified by the MTO are required to
obtain a massage establishment permit but are not required to provide the
information required in subsections (a) through (k) below):
a. Full complete name and all aliases used by the operator;
b. All residential addresses for eight (8) years immediately
preceding the date of the application;
c. A description (including name, type of business, address
and phone numbers) of any other business owned or operated by the
operator, whether located on the same premises, or elsewhere within the
State of California;
d. Proof of the operator's date of birth;
e. Height, weight, color of hair and eyes, and sex of the
operator;
Ordinance 1380 -Page 8 of 23
680880.5
f. Two (2) front-facing portrait color photographs at least two
(2) inches by two (2) inches in size;
g. The operator's complete business, occupation, and
employment history for eight (8) years preceding the date of application;
h. The complete massage permit history of the operator;
whether the operator 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, or
suspended; or if a vocational professional license or permit was denied,
revoked, or suspended; and the reason therefor;
i. All criminal convictions of the operator, including pleas of
polo contendere, within the last five (5) years, and the date and place of
each such conviction and reason therefor, including those dismissed or
expunged pursuant to Penal Code Section 1203.4, but excluding minor
traffic violations;
j. Evidence that a complete set of fingerprints of the operator
was taken through the Livescan service;
k. The operator's Social Security Number; and
1. Authorization for the City, its agents and employees to seek
verification of the information contained in the application.
(c) The massage establishment permit application shall be accompanied with
an application fee in such amount as the City Council may establish by Resolution or
Ordinance.
(d) In addition to a massage establishment permit, a massage establishment
shall maintain a City business license and pay any business license tax when due.
(e) The application for the massage business license does not authorize
operation of a massage establishment or performing massage services until the massage
establishment permit is issued.
(f) It shall be the responsibility of each massage business owner and operator to
file copies or provide other evidence of the certificates held by the persons who are
providing massage services at the business.
(g) It shall be the responsibility of each massage business owner and operator to
provide written notification to the City at least fourteen (14) calendar days prior to
renaming, changing management, or conveying the massage establishment business (or
any portion thereof) to another person.
Ordinance 1380 -Page 9 of 23
680880.5
3665 Exemptions.
(a) This Part does not apply to MTO-certified massage therapists or massage
practitioners who perform chair massages on fully clothed persons in the view of the
public.
(b) Except as provided in subsection (c) below, the provisions of this Part
shall not apply to individuals within the following professional categories while engaged
in or performing the duties of their respective professions:
(1) Physicians, surgeons, chiropractors, osteopaths, acupuncturists,
and physical therapists, if duly licensed to practice in the State of California.
(2) Registered or licensed vocational nurses duly registered by the
State of California.
(3) Licensed employees of hospitals, nursing homes, or other health
care facilities duly licensed by the State of California when acting within the
scope of their licenses.
(4) Barbers and beauticians who are duly licensed under the laws of
the State of California, while engaging in practices within the scope of their
licenses.
(5) Coaches and trainers employed by accredited high schools and
colleges, therein while acting within the scope of their employment.
(6) Trainers of any amateur, semi-professional or professional athlete
or athletic team.
(7) Physical therapist students, and massage therapist and massage
practitioner students earning practical hours for school/education, and who are
currently enrolled in a licensed program for physical therapy or massage therapy
through a recognized school/education center, provided such students work under
the direct supervision of an exempted professional as defined in this section.
Direct supervision means that an exempted professional, as defined in this
section, must be present at all times when a student is performing massages.
(c) An exempted professional listed in subsection (b) above may
himself/herself perform massages without an MTO certification or massage
establishment permit. However, it shall be unlawful for any employee or independent
contractor of an exempted professional listed in subsection (b) above to perform
massages unless either:
(1) all such employees and independent contractors performing
massages are independently exempt professionals pursuant to subsection (b)
above (in which event no massage establishment permit is required); or
Ordinance 1380 -Page 10 of 23
baossos
(2) if any one or more of the employees or independent contractors
performing massages is not an exempt professional listed in subsection (b), the
establishment is operated subject to a valid massage establishment permit issued
pursuant to this Part. If a massage establishment permit is required under this
paragraph, then the applicant far the massage establishment permit shall provide,
as to each individual who performs massage services at the establishment, either
of the following:
the documents and information required by Section
3664(b)(6), or
ii. documentary evidence that such individual is an exempted
professional listed in subsection (b) above.
3666 MassaEe establishment--Facilities.
Every massage establishment shall maintain facilities meeting the following
requirements:
(a) Ste- subject to applicable provisions of the City's Codes, a recognizable and
legible sign shall be posted at the main entrance identifying the business as a massage
establishment.
(b) Li tin -minimum lighting shall be provided in accordance with the
Electrical Code adopted by the City and, in addition, at least one artificial light of not less
than forty (40) watts shall be provided in each room or enclosure where massage services
are performed on patrons and shall be activated at all times while a patron is in such room
or enclosure.
(c) Equipment -adequate equipment for disinfecting and sterilizing instruments
used in performing the acts of massage shall be provided.
(d) Water -hot and cold running water shall be provided at all times.
(e) Linen storage -closed cabinets shall be provided and utilized for storage of
clean linens, and approved receptacles shall be provided for the deposit of soiled linen.
(f) Separation of sexes - if male and female patrons are to be served
simultaneously at the massage establishment, a separate massage room or rooms and
separate dressing, bathing and toilet facilities (if provided) shall be provided and utilized
for male and female patrons. Each separate facility or room shall be clearly marked as
such.
(g) Massage table pads -pads used on massage tables shall be covered in a
professional manner with durable, washable plastic or other waterproof material
acceptable to Orange County Health Care Agency.
Ordinance 1380 - Page ll of 23
~sosaos
(h) Steam rooms and sauna facilities -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.
3667 Massage establishment operation.
Every massage establishment shall comply with the following operating requirements:
(a) Each person acting as a massage therapist or massage practitioner shall
have a valid certificate issued by the Massage Therapy Organization, a clearly legible
copy of which shall be conspicuously posted in the room or location where massage
services will be provided.
(b) It is unlawful for the owner, operator, responsible managing employee,
manager or certificate holder in charge of or in control of the massage establishment to
employ or permit a person to act as a massage therapist or massage practitioner who does
not possess a valid massage therapist or massage practitioner certificate issued by the
Massage Therapy Organization.
(c) No business, except those exempted under section 3665 herein, may
employ anyone to provide massage or allow anyone to massage unless the massage
provider possesses a valid massage certificate issued by the Massage Therapy
Organization.
(d) Massage operations shall be carried on and the premises shall be open
only between the hours of 6 a.m. and 10 p.m. A massage begun any time before 10 p.m.
must nevertheless terminate at 10 p.m. No person, whether certified or not, may provide
massage in exchange for compensation after 10:00 p.m.
(e) A list of services shall be posted in an open, public place on the premises,
and shall be described in readily understood language. No owner, operator, responsible
managing employee, manager, or certificate holder shall permit, and no massage therapist
or massage practitioner shall offer to perform any services other than those posted.
(f) Any massage establishment or business shall maintain on its premises
evidence for review by local authorities that demonstrates that all persons providing
massage services are certified by the Massage Therapy Organization.
(g) Each massage therapist and massage practitioner shall wear a name tag
displaying the name specified on their certificate while administering a massage and
which shall be worn on outer clothing and be clearly visible. The massage therapist and
massage practitioner shall not use any name other than specified on their certificate and
name tag while on duty.
(h) Massage therapists and massage practitioners shall be fully clothed at all
times while in the presence of any other individual within the massage establishment.
Clothing shall be of a fully opaque, non-transparent material and provide the complete
covering from mid-thigh to three (3) inches below the collar bone.
Ordinance 1380 -Page 12 of 23
680880.5
(i) Areas where massages are to be performed shall be separated by a non-
lockable door unless there is no staff available to assure security for clients and massage
staff who are behind closed doors. Said door shall not be equipped with a "peep hole" or
any other device that allows anyone to see into or out of this room when the door is
closed.
(j) Towels and linens shall not be used on more than one (1) patron unless
they have first been laundered and disinfected. Disposable towels and coverings shall not
be used on more than one (1) patron. 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."
(k) Wet and dry heat rooms, steam or vapor rooms or cabinets, shower rooms
and compartments, toilet rooms and pools shall be thoroughly cleaned and disinfected as
needed, and at least once each day the premises are open, with a disinfectant approved by
the Health Department. Bathtubs shall be thoroughly cleaned after each use. A11 walls,
ceilings, floors, and other physical facilities for the establishment must be in good repair
and maintained in a clean and sanitary condition.
(1) Instruments utilized in performing massage shall not be used on more than
one (1) patron unless they have been sterilized using approved sterilizing methods.
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.
(m) Where a covering is furnished by the massage establishment, it shall not
be used by more than one (1) patron until it has first been laundered and disinfected.
(n) The owner or operator of the massage establishment shall keep a complete
and current list of the names and residence addresses of all massage therapists, massage
practitioners and employees of the massage establishment, and the name and residence
addresses of the manager or managing employee purported to be principally in charge of
the operation of the massage establishment. This roster shall be kept at the premises and
be available for inspection by officials charged with enforcement of this Part.
(o) Every massage establishment shall keep a written record of the date and
hour of each treatment administered, the name and address of each patron, the name of
the massage therapist or massage practitioner administering treatment, and the type of
treatment administered, to be recorded on a patron release form. Such written record shall
be open to inspection by officials charged with enforcement of this Part. Such records
shall be kept on the premises of the massage establishment for a period of two (2) years.
In the event the massage establishment relocates, the records shall be retained at the new
location.
(p) No part of the massage establishment shall be used for residential or
sleeping purposes.
Ordinance 1380 -Page 13 of 23
680880.5
(q) No person shall enter, be, or remain in any part of a massage
establishment while in the possession of, consuming, or using any alcoholic beverage or
illegal drug. Legal over-the-counter drugs and prescription drugs are permitted, provided
the individual in possession of the prescription drug is the individual identified on the
prescription label. The responsible owner, operator, managing employee, manager or
permittee shall not permit any person in possession of illegal drugs to enter or remain
upon such premises.
(r) Every massage establishment shall be open at all times during hours
during which massage is being provided for inspection by any officer of the City of
Tustin.
(s) All doors leading into a massage establishment or area where massages
are being performed shall remain unlocked during business hours unless there is no staff
available to assure security for clients and massage staff who are behind closed doors.
(t) No massage establishment shall simultaneously operate as a school of
massage, or share facilities with a school of massage.
(u) An owner, operator or manager shall be at the massage establishment at all
times when massages are being performed.
3668 Prohibited conduct .
(a) A massage therapist or massage practitioner shall not violate the
provisions of Sections 647(a) and (b) of the California Penal Code, or any other state law
involving a crime of moral turpitude, and such practices shall not be allowed or permitted
by anyone.
(b) A massage therapist or massage practitioner shall be fully clothed at all
times while in the presence of any other individuals in the massage establishment and
shall not expose his or her genitals, pubic area, buttocks, or in the case of female
therapists or practitioners, her breasts, and such practices shall not be allowed or
permitted by anyone.
(c) Except as expressly permitted herein, a massage therapist or massage
practitioner shall not massage a patron of one sex within the view of a patron of the
opposite sex, and such practices shall not be allowed or permitted by anyone unless all
parties expressly consent to the treatment, location, and presence of the patron of the
opposite sex.
1. This subsection shall not apply if all involved patrons are fully
clothed, excluding socks or stockings.
2. No more than one male and one female may consent to be
massaged in the same treatment room.
Ordinance 1380 -Page 14 of 23
bsosso.s
3. No person under the age of 18 may consent to a massage in the
presence of another unless the other patron present is the minor's parent or legal
guardian, and the parent or legal guardian consents.
(d) No more than two members of the same sex may consent to be massaged
in the same treatment room unless all involved patrons are fully clothed, excluding socks
or stockings.
(e) A massage therapist or massage practitioner shall not massage, fondle, or
otherwise have intentional contact with the genitals or anus of any patron, or the breasts
of a female patron and such practices shall not be allowed or permitted by anyone.
(f) A massage therapist or massage practitioner shall not give a massage
unless the breasts of female patrons are covered and the genitals of all patrons are
covered, and such practices shall not be allowed or permitted by anyone.
(g) It shall be unlawful for a massage therapist or massage practitioner or any
other person to perform, or to offer to perform, a massage for compensation in any
private residence (including the private residence of a massage therapist or massage
practitioner) or in a hotel or motel room.
3669 Responsibility .
Pursuant to Business and Professions Code section 4612(c), the owner and
operator of a massage business or establishment shall be responsible for the conduct of all
employees and independent contractors working on the premises of the business.
Accordingly, any massage establishment permit may be suspended or revoked based also
upon violations of this Part committed by the permittee's employees or independent
contractors, whether or not such violations occur without the actual knowledge of the
owner or operator.
3669.1 Violation--Penal
In addition to any other penalty or remedy set forth in the Tustin City Code (including all
remedies available under Chapter 1 of Article 1 of the Tustin City Code) or set forth
under State or Federal law, any person violating this chapter shall be guilty of a
misdemeanor, punishable by a fine of one-thousand dollars ($1,000) per violation or by
imprisonment in the county jail for a period not to exceed six (6) months, or by both such
fine and imprisonment. Each day or portion thereof that a person permits a violation of
this Chapter to continue shall constitute a separate and subsequent offense.
3669.2 Unlawful operation declared nuisance .
Any massage establishment operated, conducted or maintained contrary to the provisions
of this chapter shall be and the same is hereby declared to be unlawful and a public
nuisance. The City Attorney may, in addition to, or in lieu of prosecuting a criminal
action hereunder, commence an action or actions, proceeding or proceedings for
Ordinance 1380 -Page 15 of 23
680880.5
abatement, removal or enjoinment thereof, in the manner provided by law. The City
Attorney shall take such other steps and shall apply to such court or courts as may have
jurisdiction to grant such relief as shall abate or remove such massage establishment and
restrain and enjoin any person from operating, conducting or maintaining a massage
establishment contrary to the provisions of this Part.
SECTION III. Sections 3712, 3713 and 3714 of Article 3 of the Tustin City
Code are hereby amended to read in their entirety as follows:
3712 -DENIAL
An application for a permit, including renewal of a permit, may be denied for any
of the following reasons:
(1) The applicant has made material misrepresentations of fact or omitted
material information required by the application;
(Z) The applicant does not meet the prerequisites for a permit as specified
in this Article. The Director or the Planning Commission has the
discretion to evaluate information presented to satisfy prerequisites and to
determine its credibility or reliability;
(3) In the case of a renewal, the permit maybe also denied if the permittee
has failed to abide by the operational regulations specified in this code or
the conditions of the permit. The proposed denial of the renewal of a
permit for these reasons shall be heard and decided by the Director or the
Planning Commission.
(4) In the case of an adult entertainment booking agency, massage
establishment, or mobile ice cream vendor, if the applicant or any of
his/her managers, supervisors, or employees have been convicted within
the last five (5) years of any offense classified by the State of California as
an offense involving sexual crimes against children, sexual abuse, rape,
kidnapping, distribution of obscene material or material harmful to
minors, prostitution or pandering, including, but not necessarily limited to,
the violation of any crime requiring registration under California Penal
Code Section 290, or any violation of Penal Code sections 243.4, 261,
261.5, 264.1, 266, 266a through 266k, inclusive, 267, 286, 286.5, 288,
288a, 311 through 311.10, inclusive, 314, 315, 316, or 647, or any offense
outside the State of California that would constitute any of the above-
described offenses if committed within the State of California, or if the
applicant or any of his/her agents, managers, supervisors, employees, or
independent contractors have been convicted within the five (5) years
immediately preceding the application of any offense involving the sale of
a controlled substance specified in Health and Safety Code Sections
11054, 11055, 11056, 11057 or 11058, or the possession for sale and/or
possession of a controlled substance, as specified above, or been subjected
Ordinance 1380 -Page 16 of 23
680880.5
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.
(5) Any applicant has engaged in conduct in the City or in another
jurisdiction which, if it had occurred within the City, would constitute
grounds for denial, suspension, or revocation under any Part under this
Article.
(6) Any applicant has been convicted within the five (5) years
immediately preceding the application 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 permiee.
(7) The application does not contain all of the information required by the
Part applicable to the permit application.
(8) In the case of a massage establishment:
(a) the applicant has had a massage establishment permit, MTO
certificate, massage technician permit or other similar license or permit
denied, suspended, revoked, or refused to be renewed for cause by a
permitting authority or by any city, county, or state; or
(b) 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; or
(c) the applicant, or any of the applicant's employees or
independent contractors, has violated a provision of Business and
Professions Code sections 4600-4613.
Denial of permits, including renewals of permits, may be appealed in accordance
with Part 3 of this Chapter.
3'713 -TERM
Unless a different term is specified in this Article, permits shall be valid from the
date of issuance until revoked or abandoned. Massage establishment permits shall
be valid from the date of approval by the City until January 31 of the following
calendar year, and shall be renewed annually on or before January 31
Ordinance 1380 -Page 17 of 23
680880.5
3714 -ANNUAL UPDATE
Information required on the application for the original permit shall be updated
and corrected by the applicant as appropriate on an annual basis, or as otherwise
required by conditions of the permit.
SECTION IV. Section 3141 of the Tustin City Code is amended to add the
following definitions shown with underscored text and to delete the following definitions
shown with strikeout text:
ombensation. The navment loan advance donation cnntrih,~tion deco it or
gift of money or anvthin~ of vah,P
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"Massage" or "massage therapy" men anv method of press ire on or friction
against or stroking k eadin~ rubbing tan ins pounding vibrating or
stimulat~n~ the external na_rts ~f the human hnw with the hand or with the aid of
anv mechanical or electrical aaparatus or aUUlian~P or with or without
ementarv aid such s rubbing alcohol lin'ment anti epti~' oil owder
c eam ointment or other imilar preparation co monly hse~ in this racti~P
Ma establi hment v e tabli h_ment having a fixed tila~P of bu roes
where anv person or combination of persons enuauPS in conducts came on or
permits to be enua~ed in condu~tPd or carried on ma ayes or health treatment
involvinu massage.
Ordinance 1380 -Page 18 of 23
680880.5
Massage operator.
. See definition of "Operator" in ~ecti~n ~h(2
Massa ge. bractit ioner A person who is c ertifie d by the Mac caup Tharan~,
r~ani zation un der ub divisien (bl of Sectio n 460 1 of the Calif orni Bu ine
Pro fessional s Code nd who ad m;n;StPrc macca~ rp fnr com pens ation
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N~as sage th era bist A per son w ho is ce rtified by the Ma CCaaP Th Pranv
r~ aniza tion un der Subd ivi sion (c l of Se ctio n 46 01 o f the Cali fornia Bu ine
and Profe ssi ons Cod e an d w ho adm inisters m ac~ag e fnr compensa tion
MTO or Massa~'e Therabv Organization The Massage Theranv ~?r'aani~atinn
escribed in Subdivision (cl of ection 4601 of the California Bu ine and
Professions Code
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Ordinance 1380 -Page 19 of 23
680880.5
SECTION V. Article 9 of the Tustin City Code is amended as follows:
Section 9232.a.2 is hereby repealed and replaced in its entirety as follows:
2. Service businesses, exemplified by the following list, including any retail
sales incidental thereto, when conducted within a building:
(a) Banks, financial institutions and savings and loans (including those
providing drive-thru service)
(b) Barber shops
(c) Beauty parlors
(d) Dance studios
(e) Dry-cleaning or laundry agencies (pick-up and delivery only)
(~ Equipment rental business conducted within a building (light
materials i.e. party supplies, household appliances, small household
tools, medical equipment, etc.)
(g) Laundromats or other self-service laundering facilities
(h) Locksmiths
(i) Martial Arts studios
(j) Massage Establishments
(k) Recycling facilities or reverse vending machines (as defined in
Section 9297 and subject to the provisions set forth in Section
9271bb)
(1) Reprographics
(m) Restaurants (not including drive-ins/drive-thru, take-out or walk-up)
(n) Seamstress or millinery shops
(o) Shoe or luggage repair shops
(p) Smog check stations with service bays in conjunction with approved
service station
Ordinance 1380 -Page 20 of 23
baossos
(q) Tailor shops
(r) Travel agencies
(s) Tutoring facilities
Section 9232.b.18 is deleted.
SECTION VI. The definition of "Massage establishment" in Section 9297
of the Tustin City Code is hereby deleted and replaced in its entirety to read as follows:
"Ma~sa~e Establishment" shall be defined a~ yet fc,rth ;n 4P~tinn ~~at ~f rhP T„~t;,, r;~~,
_ - - + . ~ va ~aav a lY
COde•
SECTION VII. Section 3121 of the Tustin City Code is hereby repealed
and replaced in its entirety as follows:
3121-SCOPE/APPLICABILITY
The business regulations in this Article shall apply to those businesses operating within
the City and identified in this Article. Whenever the applicability of this Article to a
particular business is subject to varying interpretation, the City Council shall be the final
appeal body and final decision maker as to the scope of this Article and its application to
a particular business.
All businesses operating within the City of Tustin shall comply with the requirements of
Article 3 regardless of when they began operating within the City.
SECTION VIII. This Ordinance shall take effect on the 31St day after its
adoption. The City Clerk or his or her duly appointed deputy shall certify to the adoption
of this Ordinance and shall cause this Ordinance to be published as required by law.
Urgency Ordinance No. 1371 shall be repealed as of the effective date of this
Ordinance.
SECTION IX. The City Council finds that this Ordinance is not subject to
the California Environmental Quality Act pursuant to Sections 15060(c)(Z) (the activity
will not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
Ordinance 1380 -Page 21 of 23
680880.5
of the CEQA Guidelines, Cal. Code of Regs, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
SECTION X. If any section, subsection, subdivision, sentence, clause, phrase,
or portion of this Ordinance is, for any reason, held 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, subdivision,
sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more
section, subsection, subdivision, sentence, clause, phrase, or portion thereof be declared
invalid or unconstitutional.
PASSED, APPROVED, AND ADOPTED this - day of 2010.
JERRY AMANTE, MAYOR
ATTEST:
PAMELA STOKER, CITY CLERK
APPROVED AS TO FORM:
DOUGLAS HOLLAND, CITY ATTORNEY
Ordinance 1380 -Page 22 of 23
680880.5
ORDINANCE CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
ORDINANCE NO.
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 five; that the above and foregoing Ordinance was passed
and adopted at a regular meeting of the City Council held on the _ day of
2010, by the following vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
PAMELA STOKER, CITY CLERK
Published:
Ordinance 1380 -Page 23 of 23
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