HomeMy WebLinkAboutORD 1380 (2010)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 orolinance 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
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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;
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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 1. 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
apply in this Chapter. In addition,
~~ otherwise requires, the definitions
govern the construction, meaning,
--`- phrases used in this chapter.
Section 3141 of the Tustin City Code shall
unless the particular provision or the context
and provisions contained in this section shall
and application of the following words and
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t
"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; 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
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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
Apulication 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:
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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 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;
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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 practitionerss, 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.
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(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;
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k. the owner's Social Security Number; and
I. 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 (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 nolo contendere, within the last five (5) years, and the date
and place of each such conviction and reason therefor, including
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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
I. 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.
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.
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(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:
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the documents and information required by Section
3664(b)(6), or
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) Sin -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.
(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) Massac,Le 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 Massaae establishment operation.
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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.
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(i) Areas where massages are to be performed shall be separated by
anon-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.
Q) 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.
(I) 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.
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(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.
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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.
Ordinance 1380
Page 16 of 24
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
Ordinance 1380
Page 17 of 24
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 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 permittee.
(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.
Ordinance 1380
Page 18 of 24
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:
omvensation. The aavment. loan. advance. donation. contribution.
eposit. or sift of money or anything of value.
"Massage" or "massage therapy" means anv method of pressure on. or
friction against or stroking. kneading. rubbing. tapping, pounding.
ibratina. or stimulating the external parts of the human body with the
hands or with the aid of anv mechanical or electrical apparatus or
ppliance, or with or without suaplementarv aids such as rubbing alcohol.
liniment. antiseptic. oil. powder. cream. ointment. or other similar
preparations commonly used in this practice.
Ordinance 1380
Page 19 of 24
Massage establishment. Anv establishment having a fixed glace of
usiness where anv person or combination of persons. engages _ in.
onducts. carries on or permits to be engaged in, conducted or carried on.
massages or health treatments involving massage.
Massage operator.
. See definition of "Operator" in section 3662.
Massage practitioner. A person who is certified by the Massage Therapy
raanization under Subdivision (b) of Section 4601 of the California
Business and Professionals Code. and who administers massage for
compensation.
~~ ~~ ,~
Massage therapist. A person who is certified by the Massage Therapy
Organization under Subdivision (c) of Section 4601 of the California
Business and Professions Code. and who administers massage for
compensation.
MTO or Massage Therapy Organization. The Massag e Therapy
Organization describ ed in Sub division (c) of Section 4601 of th e California
Business and Profes sions Cod e.
Ordinance 1380
Page 20 of 24
~
_ ~ .
Person. An individual person.
ioint venture. association. partnership limited liability company
corporation or other entity.
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
Ordinance 13 80
Page 21 of 24
(k) Recycling facilities or reverse vending machines (as defined in
Section 9297 and subject to the provisions set forth in Section
9271 bb)
(I) 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:
"Massaae 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.
Ordinance 1380
Page 22 of 24
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 31 gt 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 15th day of June, "" "
P ela Stoker
City Clerk
Ordinance 1380
Page 23 of 24
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
CERTIFICATION OF ORDINANCE NO. 1380
PAMELA STOKER, City Clerk and ex-ofiacio 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 16t" day of June 2010, by the following vote:
COUNCILMEMBER AYES: Ai~ante, Nielsen, Davert, Palmer (4)
COUNCILMEMBER NOES: (o>
COUNCILMEMBER ABSTAINED: (o)
COUNCILMEMBER ABSENT: Gavello (1)
I'am a Stoker
.City Clerk
Published:
Ordinance 13 80
Page 24 of 24