HomeMy WebLinkAbout18 SECOND READING OF CODE AMENDMENT 10-003 (ORDINANCE NO. 1380), MESSAGE ESTABLISHMENTSAgenda Item 18
Reviewed:
AGENDA REPORT City Manager
Finance Director N/A
MEETING DATE: JUNE 15, 2010
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: OFFICE OF THE CITY CLERK
SUBJECT: SECOND READING OF CODE AMENDMENT 10-003
(ORDINANCE NO. 1380), MASSAGE ESTABLISHMENTS
SUMMARY:
On September 27, 2008, the Governor signed Senate Bill (SB) 731 into law, relating to
massage therapy. Code Amendment 10-003 is proposed to achieve consistency with
State law, codify new massage regulations, and protect the public health, safety, and
welfare.
Proposed Code Amendment 10-003 (Ordinance No. 1380) would:
1. Require all massage therapists and practitioners in Tustin to be certified by the
California Massage Therapy Council (CAMTC).
2. Provide a grace period to existing massage technicians and operators holding Valid
City of Tustin permits.
3. Require all massage owners and operators to obtain new establishment permits
from the City.
4. Amend the Zoning Code to allow massage establishments as an outright permitted
use in the Retail Commercial (C-1 ), Central Commercial (C-2), and Commercial
General (C-G) zoning districts.
On May 11, 2010, the Tustin Planning Commission adopted Resolution No. 4146,
recommending that the Tustin City Council adopt Ordinance No. 1380, relating to the
regulation of massage establishments and massage therapists and practitioners.
RECOMMENDATION:
Have second reading by title only and adoption of Ordinance No. 1380 (roll call vote).
FISCAL IMPACT:
Ordinance No. 1380 is aCity-initiated project. There are no direct fiscal impacts
anticipated as a result of adopting this ordinance.
BACKGROUND:
On June 1, 2010, the City Council had first reading by title only and introduction of the
following Ordinance:
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
atricia Estrella
City Clerk Services Supervisor
ATTACHMENT: 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 existing 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 all 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
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 may be 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 that the City Council approve Code Amendment 10-003;
WHEREAS, on June 1, 2010, the City Council proceeded with the first reading of
this Ordinance and conducted a public hearing regarding the proposed Ordinance,
including proposed zoning code amendments;
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, IV 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
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 II. 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
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; Massase 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 may be sold, transferred, or assigned by
a permittee, or by operation of law, to any other person or persons. Any such sale,
transfer, or assignment, or attempted sale, transfer, or assignment shall be deemed to
constitute a voluntary surrender of such permit and such permit shall thereafter be null
and void; provided 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
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 Requirements.
(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
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
application shall set forth the full
owner, including all aliases.
is owned by an individual, the
name and residence address of the
(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;
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
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;
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
nolo 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;
f. Two (2) front-facing portrait color photographs at least two
(2) inches by two (Z) 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
nolo 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 J to another person.
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
(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 for 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 Massage establishment--Facilities.
Every massage establishment shall maintain facilities meeting the following
requirements:
(a) Sign -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) Lighting-- 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.
(fj 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.
(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.
(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. All 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.
(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.
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--Penalty .
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
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;
(2) 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 may be 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 andlor
possession of a controlled substance, as specified above, or been subjected
to a permanent injunction against the conducting or maintaining of
nuisance pursuant to Sections 11225 through 11235 of the California
Penal Code, or any similar provisions of law in a jurisdiction outside the
state.
(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.
3713 -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
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:
Compensation. The payment, loan. advance, donation, contribution_ deposit. ~r
gift of money or anvthin~ of value.
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"Massage" or "massage therapy" means any method of pressure on. or friction
against or stroking, kneading. rubbing, tapping, poundine, vibrating or
stimulatins the external parts of the human body with the hands or with the aid of
v mechanical or electrical apparatus or appliance, or with or without
sttpplementarv aids such as rubbing alcohol liniment antiseptic oil powder
ream, ointment, or other similar preparations commonly used in this practice
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Massage establishment. Anv establishment havine a fixed place of business
where any person or combination of persons enaa~es in conducts carries nn er
permits to be engaged in conducted or carried on massages or health treatments
involving massage.
Massage operator.
. See definition of "Operator" in section 3662
M ssa~e practitioner. A person who is certified by the Massage Theranv
Organization under Subdivision (bl of Section 4601 of the California Business
and Professionals Code, and who administers massage for compensation.
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11 11 11 11
Massage therapist. A person who is certified by the Massage Therapv
Organization under Subdivision (cl of Section 4601 of the California Business
and Professions Code, and who administers massage for compensation.
MTO or Massage Therapv Organization. The _Massa~e Theranv Oreanization
described in Subdivision (c1 of Section 4601 of the California Business and
Professions Code.
Person. An individual person, ioint
venture, association, partnership limited liability companv. corporation or other
n it
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)
(f) 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
9271 bb)
(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
(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:
"Massage Establishment" shall be defined as set forth in Section 3141 of the Tustin Citv
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)(2) (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)
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 AND ADOPTED, at a regular meeting of the City Council of the City of Tustin
on this _ day of 2010.
JERRY AMANTE, MAYOR
PAMELA STOKER, City Clerk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN 1
CERTIFICATION OF 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 No.
1380 was duly and regularly introduced and read at the regular meeting of the City
Council held on the 1St day of June, 2010, and was given its second reading, 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: