HomeMy WebLinkAbout09 FIRST READING OF CODE AMENDMENT 2015-003 (ORD. NO. 1462), MASSAGE ESTABLISHMENTS Agenda Item 9
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AGENDA REPORT City Manager _"
��STt4 Finance Director i/EP
MEETING DATE: OCTOBER 20, 2015
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: FINANCE DEPARTMENT
COMMUNITY DEVELOPMENT DEPARTMENT
SUBJECT: FIRST READING OF CODE AMENDMENT 2015-003 (ORDINANCE NO. 1462),
MASSAGE ESTABLISHMENTS
SUMMARY:
Proposed Code Amendment 2015-003 (Ordinance No. 1462) would amend and restate
Part 6 of Chapter 6 of Article 3 of the Tustin City Code (TCC) and amend Parts 3, 6 and 9
of Chapter 2 of Article 9 of the TCC relating to the regulation of massage establishments
consistent with State law.
RECOMMENDATION:
That the City Council introduce and have the first reading of Ordinance No. 1462, and set
the second reading for the Council's next scheduled meeting.
BACKGROUND AND DISCUSSION:
In 2008, the state Legislature adopted Senate Bill 731 ("SB 731"), Section 4600 et seq. of
the Business and Professions Code, relating to massage therapy. As amended in 2011
by Assembly Bill 619, SB 731 limited the ability of local governments to regulate massage
establishments. In part, SB 731:
• Prohibited the City from adopting ordinances, regulations, rules, requirements,
restrictions, or land use and zoning regulations applicable to massage
establishments that varied from the requirements uniformly applied to other
businesses providing professional services.
• Prohibited the City from regulating massage businesses that provide massage
services through employees or independent contractors certified by the California
Massage Therapy Council ("CAMTC").
City Council Report
Code Amendment 2015-003
October 20, 2015
Page 2
• Prohibited the City from requiring an applicant for a business license to operate a
massage establishment to fill out an application requesting relevant information
that differed from the information requested of applicants for other businesses
providing professional services.
• Required the local business licensing fee for massage establishments to be no
higher than the lowest fee applied to all other businesses providing professional
services.
Since the enactment of SB 731, the City has experienced a proliferation of massage
establishments. In 2008, there were eleven (11) massage establishments located in the
City and now there are forty-one (41) licensed massage establishments. Reports from
other California cities show that the enactment of SB 731 has had, as an unintended
consequence, the proliferation of illicit massage establishments that are fronts for
prostitution and may also be involved in human trafficking. In 2013, the City initiated
permit revocation proceedings against two massage establishments where prostitution
was occurring, and a number of other establishments are suspected of such illicit
activities. Numerous massage establishments commonly advertise their services on
adult-only websites using suggestive language and provocative photographs of scantily-
clad women. Additionally, numerous massage establishments generate reviews on
websites where patrons can post reviews and information regarding the sexual services
provided at these establishments.
Responding to the concerns of local agencies, the Legislature substantially revised the
law last year through the adoption of Assembly Bill 1147, otherwise known as the
Massage Therapy Act (MTA). The MTA restores local land use authority over massage
establishments by removing SB 731's broad state preemption of local massage
ordinances and provides local governments greater authority to establish reasonable
regulations to manage massage establishments in the best interests of the individual
community. Under the new law, responsibility for massage regulation is divided between
CAMTC, which regulates the practice of massage and certifies individual massage
therapists, and cities and counties, which are now once again expressly authorized to
regulate the business providing massage through land use, business licensing, and
permitting requirements.
On October 21, 2014, City Council adopted Interim Urgency Ordinance No. 1451, which
imposed a moratorium on the approval of massage establishment permits, use permits,
building permits, business licenses and other applicable approvals, licenses, permits or
other entitlements for the establishment, expansion and/or relocation of any massage
establishment for an initial period of forty-five (45) days (the "Moratorium"). On
December 2, 2014, City Council adopted Interim Urgency Ordinance No. 1452, extending
the effective term of the Moratorium for ten (10) months and fifteen (15) days. On
City Council Report
Code Amendment 2015-003
October 20, 2015
Page 3
October 6, 2015, City Council adopted Interim Urgency Ordinance No. 1463, extending
the effective term of the Moratorium for one (1) year. Per Proposed Ordinance No. 1462,
the Moratorium would be repealed as of the effective date of Code Amendment
2015-003.
As directed by City Council, staff has worked during the term of the Moratorium to study
and propose amendments to the TCC relating to the regulation of massage
establishments, consistent with State law, to discourage the location and operation of
illicit massage establishments in the City of Tustin.
Proposed Ordinance No. 1462 would amend and restate Part 6 (Massage
Establishments) of Chapter 6 of Article 3 of the Tustin City Code to comport with the
MTA.
Significant elements of the amended and restated massage regulations include the
following:
• All massage practitioners must be CAMTC-certified. (Section 3663(a))
• All massage businesses must obtain a Massage establishment permit from the
City in order to commence and continue operation. (Section 3663(c))
• Increases from 12 months to 24 months the period during which massage
establishment permits will not be issued at locations where a massage
establishment has been closed due to misconduct. (Section 3664(h))
• Owner or operator must provide the City with a complete roster of massage
establishment employees, and proof of CAMTC certification for all massage
practitioners; thereafter, the City must be notified of any subsequent change in
staffing. (Section 3668(a))
• Hours of operation are limited to 6:00 a.m. to 10:00 p.m. (Section 3668(c))
• Notice regarding patron privacy must be posted in each establishment. (Section
3668(e))
• Notice regarding human trafficking must be posted in each establishment.
(Section 3668(f))
• Massage establishment may not be open without having at least one CAMTC-
certified massage technician and an owner, operator, or manager present.
(Section 3668(g)-(h))
• Each massage technician must display their CAMTC-issued ID on their outer
clothing and in plain view. (Section 36680))
• Massage establishment shall not be used for residential or sleeping purposes.
(Section 3668(p))
• Dress attire restrictions consistent with the MTA. (Section 3669(c))
City Council Report
Code Amendment 2015-003
October 20, 2015
Page 4
• Prohibition on "unprofessional conduct" as defined by the MTA, including
prohibition against engaging in sexual activity while providing massage
services for compensation. (Section 3669(g))
• Owners, operators and managers are responsible for the onsite conduct of all
massage establishment employees. (Section 3669.1)
• City officials may make reasonable inspections of massage establishments.
(Section 3669.2)
In accordance with State law, proposed Ordinance No. 1462 would also amend
Parts 3, 6, and 9 of Chapter 2 of Article 9 (Land Use) of the TCC to: (1) update
references and definitions related to massage establishments, (2) prohibit new
massage establishments in the Professional District, and (3) require a Conditional Use
Permit for the establishment of new chiropractic office in the Professional District,
where massage services are provided by anyone other than a state-licensed
chiropractor or other exempted professional.
Detailed findings in support of proposed Ordinance No. 1462 are contained within the
proposed Ordinance.
On September 22, 2015, the Planning Commission adopted Resolution No. 4296,
recommending that City Council adopt Ordinance No. 1462.
ENVIRONMENTAL ANALYSIS:
Proposed Code Amendment 2015-003 (Ordinance No. 1462) is exempt from
environmental review under CEQA pursuant to Section 15061(b)(3) of the State
CEQA Guidelines (California Code of Regulations) because it can be seen with
certainty that there is no possibility that the activity in question may have a significant
effect on the environment. If approved, the proposed amendment would regulate
massage establishments in accordance with State law and would not have a
/significant or indirect effect on the environment.
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Pamela Arends-King Jul! Interrante
Finance Director/City Treasurer Customer Service Supervisor
i .J A .
lizabeth A. Binsack Scott Reekstin
Community Development Director Principal Planner
Attachment: Ordinance No. 1462
ORDINANCE NO. 1462
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF TUSTIN, CALIFORNIA, AMENDING AND RESTATING
PART 6 OF CHAPTER 6 OF ARTICLE 3 OF THE TUSTIN
CITY CODE, AND AMENDING PARTS 3, 6 AND 9 OF
CHAPTER 2 OF ARTICLE 9 OF THE TUSTIN CITY CODE
RELATING TO THE REGULATION OF MASSAGE
ESTABLISHMENTS (CODE AMENDMENT 2015-003).
The City Council of the City of Tustin does hereby ordain as follows:
SECTION I. Findings. The City Council finds and determines as follows:
A. The City is authorized to regulate massage and massage establishments
pursuant to California Business and Professions Code Sections 460(c), 4612(b) and
16000, California Government Code Section 51030 et seq., and Section 7 of Article XI
of the California Constitution.
B. In 2008, the state legislature adopted Senate Bill 731 ("SB 731"), Section
4600 et seq. of the Business and Professions Code, relating to voluntary statewide
certification of massage practitioners and therapists, and restricting local control of
massage establishments.
C. SB 731 precluded cities from imposing local licensing and regulatory
requirements on massage establishments that utilized state -certified massage
therapists and practitioners exclusively.
D. SB 731 mandated that any zoning requirements applicable to massage
establishments, "shall be no different than the requirements that are uniformly applied to
all other individuals and businesses providing professional services."
E. Prior to the enactment of SB 731, massage establishments were permitted
to be located within the Retail Commercial District (Cl), Central Commercial District
(C2), Heavy Commercial District (C3), and Commercial General District (CG)
(collectively, the City's "Commercial Zones") only upon the issuance of a Conditional
Use Permit.
F. Prior to the enactment of SB 731, massage establishments were
prohibited in the Professional District (Pr).
G. Following the enactment of SB 731, and consistent with the bill's mandate,
the City amended its Land Use Code (Article 9 of the Tustin City Code) to permit
massage establishments to be located within the City's Commercial Zones and the
Professional District by right, and without need for a conditional use permit.
Ordinance No. 1462
H. Since the enactment of SB 731 the City has experienced a proliferation of
massage establishments. Whereas eleven (11) massage establishments were located
within the City in 2008, there are presently forty-one (41) licensed massage
establishments in the City.
I. The enactment of SB 731 has had as an unintended consequence the
proliferation of illicit massage establishments that are fronts for prostitution and may
also be involved in human trafficking.
J. Numerous massage establishments located within the City commonly
advertise their services on adult -only websites using suggestive language and
provocative photographs of scantily -clad women.
K. Numerous massage establishments located within the City generate
reviews on websites where patrons can post reviews and information regarding the
sexual services provided at these establishments.
L. On September 18, 2014, the Governor of California signed Assembly Bill
1147, also referred to as the "Massage Therapy Act," which restores local land use
authority over massage establishments by removing SB 731's broad state preemption of
local massage ordinances and gives local governments greater authority to establish
reasonable regulations to manage massage establishments in the best interests of the
individual community, subject to specific limitations.
M. The City seeks to conform its massage regulations to the requirements of
the Massage Therapy Act and to regulate the business of massage to the extent
authorized by the Massage Therapy Act.
N. The permit requirements and restrictions imposed by Code Amendment
2015-003 are reasonably necessary to protect the health, safety and welfare of citizens
of the City.
O. If adopted, the proposed amendment and restatement of Part 6 (Massage
Establishments) of Chapter 6 of Article 3 of the Tustin City Code will regulate the
business of massage through business licensing requirements to the extent authorized
by the Massage Therapy Act. The proposed amendments to the City's Land Use Code
would (1) update the references, and definitions applicable to massage establishments,
(2) prohibit the location of new massage establishments within the Professional District,
and (3) require a Conditional Use Permit for the establishment of any new chiropractic
office in the Professional District, where massage services are provided as an
accessory use by anyone other than a state -licensed chiropractor or other exempted
professional, as specified.
P. That on September 22, 2015, a public hearing was duly noticed, called,
and held on Code Amendment 2015-003 by the Planning Commission. The Planning
Commission adopted Resolution No. 4296 and recommended that the City Council
Ordinance No. 1462
approve Code Amendment 2015-003 concerning the regulation of massage
establishments.
Q. That on October 20, 2015, a public hearing was duly noticed, called, and
held on Code Amendment 2015-003 by the City Council.
SECTION II. Part 6 (Massage Establishments) of Chapter 6 (Personal Services) of
Article 3 (Business Regulations) of the Tustin City Code is hereby amended and
restated in its entirety to read 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 technicians, employees, clients, and the general public.
3662 — DEFINITIONS
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 Part.
Acupressure means the act of applying manual pressure to parts of the body with
the intention of treating illness and/or disease or relieving pain.
California Massage Therapy Council or CAMTC means the non-profit
organization formed pursuant to the Massage Therapy Act to regulate massage
professionals, businesses, training, practices, and techniques.
Certified massage technician means any individual certified by CAMTC as a
certified massage therapist or as a certified massage practitioner pursuant to the
Massage Therapy Act.
Manager means the person or persons designated by the owner or operator of a
massage establishment to act as the representative and agent of the owner or operator
in managing the day-to-day operations of the massage establishment.
Massage or massage services means any method of treating the external parts
of the body for remedial, hygienic, relation, or any other reason or purpose, in exchange
for compensation, whether by means of pressure on, friction against or stroking,
kneading, rubbing, tapping, pounding, vibrating, acupressure, or other manner of
touching external parts of the body with the hands, or with the aid of any mechanical or
electrical apparatus or appliance with or without supplementary aids such as rubbing
alcohol, liniment, antiseptic, oil, powder, cream, ointment, or other similar preparations
commonly used in this practice.
Massage establishment means any establishment having a fixed place of
business where any person or combination of persons engages in, conducts, carries on,
Ordinance No. 1462
or permits to be engaged in, conducted or carried on, massages or health treatments
involving massage. Except as provided in Section 3665, any type of business or
establishment at which massage is provided shall be considered a massage
establishment for purposes of this Part, regardless if the business holds itself out as
something other than a massage establishment and/or also offers or provides other
types of products or services. The residence or business office of a sole provider who
only engages in out-call massage and does not provide massage services at such
residence or business office shall not be considered a massage establishment.
Massage Therapy Act means the California Business and Professions Code
Section 4600 et seq., as may be amended from time to time.
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. 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.
Out-Call Massage means the performance of massage services at a location
other than a massage establishment. Such locations may include, but are not limited to,
hotel rooms, offices, or patron residences.
Owner means the person or persons who owns the massage establishment as
identified on the City of Tustin massage establishment permit.
Permittee means a person that has been issued a massage establishment permit
by the City pursuant to this Part.
Sole provider means any legal form of business organization where the business
owner owns 100 percent of the business, is the only person who provides massage
services for that business pursuant to a valid and current State certificate, and has no
other employees or independent contractors.
State certification or State certificate means a valid and current certificate issued
by CAMTC pursuant to California Business and Professions Code Section 4600 et seq.,
as may be amended from time to time.
3663 — STATE CERTIFICATE AND MASSAGE ESTABLISHMENT PERMIT
REQUIRED
(a) It shall be unlawful for any individual to provide massage services in or upon any
premises within the City of Tustin unless that individual has a valid and current
State certificate.
(b) It shall be unlawful for any owner, operator, manager or any other person in
charge of or in control of a massage establishment to employ, retain, or permit an
individual to provide massage services at a massage establishment within the
Ordinance No. 1462
City of Tustin who does not possess a valid and current State certificate. Each
owner, operator, and manager of a massage establishment shall have a
continuing obligation to verify that all individuals providing massage services hold
the State certification required by this Part.
(c) It shall be unlawful to commence or to continue to operate a massage
establishment 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.
(d) 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 (1) or more of the partners should die, one (1) 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.
3664 — 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
Ordinance No. 1462
the name, residence address, and a copy of a valid and current
driver's license and/or identification card issued by a state or
federal government agency or other photographic identification
bearing a bona fide seal by a foreign government shall be provided
for each of its current officers and directors, and of each
stockholder holding more than five 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, residence
address, and include a copy of a valid and current driver's license
and/or identification card issued by a state or federal government
agency or other photographic identification bearing a bona fide seal
by a foreign government for 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 LI -Cs shall apply.
c. If the establishment is owned by an LLC, the application shall set
forth the name, residence address, and include a copy of a valid
and current driver's license and/or identification card issued by a
state or federal government agency or other photographic
identification bearing a bona fide seal by a foreign government for
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, 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 (1)
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.
Ordinance No. 1462
(5) A complete current list of the names, all aliases, and current residence
addresses of:
a. The operator;
b. All certified massage technicians who will perform massages at the
massage establishment, whether as employees or independent
contractors of the massage establishment;
C. All other proposed employees, inclusive of independent
contractors, 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(s), all aliases, and current residence address(es) of all such
manager(s).
(6) Copies of a valid and current State certificate and CAMTC-issued
identification card for each certified massage technician who will perform
massage at the massage establishment.
(7) The name and address of the owner and lessor of the real property upon
or within 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,
and that the massage establishment shall be subject to this Part.
(8) A statement signed by the owner and operator that each shall be
responsible for the conduct of all employees and independent contractors
working on the premises of the business, whether or not the owner or
operator is aware of such conduct, and acknowledging that any violation
of the Massage Therapy Act, any local, state or federal law, or the
provisions of this Part may result in the revocation of the massage
establishment permit and civil, administrative, or criminal penalties.
(9) 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.
(10) The application shall include all of the following information concerning the
owner (individual owners who are certified by CAMTC are required to
obtain a massage establishment permit, but are not required to provide
the information required in subsection j. 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;
Ordinance No. 1462
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. A valid and current driver's license and/or identification card issued
by a state or federal government agency or other photographic
identification bearing a bona fide seal by a foreign government,
evidencing 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;
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;
Evidence that a complete set of fingerprints of the owner was taken
through the Livescan service; and
k. Authorization for the City, its agents and employees to seek
verification of the information contained in the application.
(11) The application shall include all of the following information concerning the
operator (individual operators who are certified by CAMTC are required to
obtain a massage establishment permit, but are not required to provide
the information required in subsection j. 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;
Ordinance No. 1462
d. A valid and current driver's license and/or identification card issued
by a state or federal government agency or other photographic
identification bearing a bona fide seal by a foreign government,
evidencing 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;
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; and
k. 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) The owner and/or operator must provide written notification to the City at least
fourteen (14) calendar days prior to renaming or conveying the massage
establishment business (or any portion thereof) to another person.
(g) Except as otherwise provided in Section 3668, if, during the term of a massage
establishment permit, there is any change to the information submitted on the
original or renewal application, the owner and/or operator shall notify the Director
in writing of any such change within ten (10) calendar days thereafter.
Ordinance No. 1462
(h) The Director shall not process or issue a new massage establishment permit
where, within a twenty-four month period prior to the submittal of an application,
the location of the proposed massage establishment, inclusive of the parcel
within which the proposed massage establishment would be located, (i) has been
the site of a violation of this Part, or any similar criminal or civil ordinance, law,
rule, or regulation of the State of California or any other public agency which
regulates the operation of massage establishments, or (ii) has been the site of a
massage establishment that was closed due to criminal activity. For purposes of
this subsection, closure due to criminal activity includes voluntary closure of a
massage establishment after there have been arrests at the location or other
notices relating to criminal activity.
3665 — EXEMPTIONS
(a) This Part does not apply to certified massage technicians 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) Healing arts professionals licensed by the State under Division 2
(Commencing with Section 500) of the Business and Professions Code,
including without limitation, physicians, surgeons, chiropractors,
osteopaths, acupuncturists, and physical therapists.
(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 services 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.
Ordinance No. 1462
(c) An exempted professional listed in subsection (b) above may himself/herself
perform massages without a State 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 exempted professionals pursuant to subsection (b)
above (in which event no massage establishment permit is required); or
(2) If any one (1) or more of the employees or independent contractors
performing massages is not an exempted 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:
i. The documents and information required by subsection 3664(b)(6),
or
ii. Documentary evidence that such individual is an exempted
professional listed in subsection (b) above.
3666 – OUT -CALL MASSAGE
(a) No person shall perform an out -call Massage in the City of Tustin without
possessing a valid and current State certificate.
(b) Notwithstanding any other provision of this Part, the owner or operator of a
massage establishment with a fixed place of business providing out -call massage
shall obtain a massage establishment permit in accordance with the
requirements set forth in this Part.
3667 – 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 (1) 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.
Ordinance No. 1462
(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
linen, and approved receptacles shall be provided for the deposit of soiled linen.
(f) Separation of sexes: If male and female patrons are to be served simultaneously
at the massage establishment, a separate massage room or rooms and separate
dressing, bathing and toilet facilities (if provided) shall be provided and utilized for
male and female patrons. Each separate facility or room shall be clearly marked
as such.
(g) Massage table pads: Pads used on massage tables shall be covered in a
professional manner with durable, washable plastic or other waterproof material
acceptable to Orange County Health Care Agency.
(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.
3668 – MASSAGE ESTABLISHMENT—OPERATIONS
Every massage establishment shall comply with the following operating requirements
(a) After obtaining a massage establishment permit, and prior to conducting
business on the massage establishment premises, the owner or operator shall
provide the Director with a complete roster of the names, job titles and residence
addresses of all employees and independent contractors for the massage
establishment, including but not limited to massage technicians and managers,
and the date the employee or independent contractor was hired. The owner or
operator shall also provide the Director with copies of a State certificate and
CAMTC-issued identification card for all individuals providing massage services
for the massage establishment. The owner or operator shall report to the
Director any change of employees or independent contractors, whether by new
or renewed employment, discharge or termination and provide an updated roster
and documentation evidencing State certification as appropriate. No such newly
hired or renewed employee or independent contractor shall be present at the
massage establishment prior to such time as the owner or operator provides the
Director with the updated roster and State certification documentation required by
this section. The owner or operator shall provide the updated roster within five
(5) calendar days following the date of termination of any employee or
independent contractor. The roster, and copies of a State certificate and
CAMTC-issued identification card for all individuals providing massage, shall be
kept at the premises and be available for inspection by officials charged with
enforcement of this Part.
Ordinance No. 1462
(b) The massage establishment permit issued pursuant to this Part shall be
displayed in an accessible and conspicuous place, visible from the entrance
and/or reception and waiting area of the massage establishment.
(c) Massage services shall be carried on and the premises shall be open only
between the hours of 6:00 a.m. and 10:00 p.m. A massage begun any time
before 10:00 p.m. must nevertheless terminate at 10:00 p.m. No person may
provide massage on the premises after 10:00 p.m.
(d) 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, or
manager shall permit, and no massage technician, or any other massage
establishment employee or independent contractor, shall offer to perform any
services other than those posted.
(e) The following notice shall be posted in an open, public place on the premises:
NOTICE TO ALL PATRONS: THIS MASSAGE ESTABLISHMENT AND
THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRIVACY
AND ARE SUBJECT TO INSPECTION BY AUTHORIZED CITY OF
TUSTIN PERSONNEL WITHOUT PRIOR NOTICE.
(f) The following notice, measuring at least 8.5 inches by 11 inches in size, written in
16 -point font, shall be posted in a conspicuous place in the massage
establishment in clear view of the public and employees, and displayed in
English, Vietnamese, Mandarin, Spanish, Cantonese, Korean:
If you or someone you know is being forced to engage in any activity and
cannot leave --whether it is commercial sex, housework, farm work,
construction, factory, retail, or restaurant work, or any other activity --call
the National Human Trafficking Resource Center at 1-888-373-7888 or the
California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-
KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services.
Victims of slavery and human trafficking are protected under United States
and California law. The hotlines are:
• Available 24 hours a day, 7 days a week
• Toll-free
• Operated by nonprofit, nongovernmental organizations
• Anonymous and confidential
• Accessible in more than 160 languages
• Able to provide help, referral to services, training, and general
information
(g) No massage establishment shall be open for business without having at least
one certified massage technician on the premises, and on duty.
Ordinance No. 1462
(h) An owner, operator or manager shall be at the massage establishment at all
times when the massage establishment is open for business.
(i) Each massage technician shall, at all times while on the premises, wear and
display their original CAMTC-issued identification card on their outer clothing and
in plain view.
(j) Front doors used for patron access, and internal doors leading into an area
where massages are being performed, shall remain unlocked during business
hours, unless the massage establishment is a business entity owned by one
individual with one or no employees or independent contractors. Internal doors
shall not be equipped with a "peep hole" or any other device that allows anyone
to see into or out of a room when the door is closed.
(k) 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."
(1) 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.
(m) 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.
(n) 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.
(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 technician administering treatment, and the type of treatment
administered, to be recorded on a patron release form. Such written record shall
be open to inspection by officials charged with enforcement of this Part. Such
records shall be kept on the premises of the massage establishment for a period
of two (2) years. In the event the massage establishment relocates, the records
shall be retained at the new location.
(p) No part of the massage establishment shall be used for residential or sleeping
purposes.
Ordinance No. 1462
(q) Only professional massage tables may be placed in massage rooms and utilized
for massage services. The tables must have a minimum height of eighteen (18)
inches. Beds, mattresses, waterbeds, futons, sofa beds, or any type of portable
or convertible beds are not permitted on the premises.
(r) No massage establishment shall simultaneously operate as a school of
massage, or share facilities with a school of massage.
3669 — PROHIBITED CONDUCT
(a) No massage technician, or any other massage establishment employee,
inclusive of independent contractors, shall violate the provisions of Section
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) No massage technician, or any other massage establishment employee or
independent contractor, shall expose their genitals, pubic area, buttocks, anus, or
breast(s) below the point immediately above the top of the aureole to the view of
a massage establishment patron.
(c) No massage technician while engaged in the practice of massage, or while
visible to patrons of the massage establishment, shall dress in: attire that is
transparent, see-through, or substantially exposes the massage technician's
undergarments; swim attire, if not providing a water-based modality approved by
CAMTC; a manner that exposes the massage technician's breast, buttocks, or
genitals; or a manner that constitutes indecent exposure in violation of Section
314 of the California Penal Code.
(d) Except as expressly permitted herein, a massage technician shall not massage a
patron of one (1) 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 (1) male and one (1) female may consent to be
massaged in the same treatment room.
(3) No person under the age of eighteen (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.
(e) No person(s) other than an owner, operator, manager, employee, independent
contractor or patron shall be allowed beyond the reception and waiting area
during the hours of operation. Any other person(s) found beyond the reception
and waiting area including but not limited to hallways, massage rooms, offices,
lounge areas, or dressing rooms will be in violation of this section.
Notwithstanding the foregoing, the following persons may be permitted beyond
Ordinance No. 1462
the reception area, and present in massage rooms while massage services are
provided without violating this subsection: (1) the parents or guardian of a patron
who is a minor child; (2) a minor child of a patron; or (3) the conservator, aide, or
other caretaker of a patron.
(f) No more than two (2) 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.
(g) No massage technician, or any other massage establishment employee,
inclusive of independent contractors, shall engage in any form of "unprofessional
conduct" as defined by Section 4609(a)(1) of the Massage Therapy Act,
including:
(1) Engaging in any form of sexual activity on the premises of the massage
establishment.
(2) Engaging in sexual activity while providing massage services for
compensation.
(3) Providing massage of the genitals or anal region.
(4) Providing massage of female breasts without the written consent of the
person receiving the massage and a referral from a licensed California
health care provider.
(h) A massage establishment patron's genitals, anus, and in the case of a female,
her breasts (except as expressly permitted by subsection (g) above), must be
fully covered at all times while a massage technician or any other massage
establishment employee, inclusive of independent contractors, is present in the
same room as the patron.
(i) 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 owner, operator, manager or any other
massage establishment employee or independent contractor shall not permit any
person in possession of illegal drugs to enter or remain upon such premises.
Ordinance No. 1462
3669.1 — RESPONSIBILITY
The owner, operator, and manager shall be responsible for the conduct of all
employees, inclusive of independent contractors, working on the premises of the
massage establishment, whether or not the owner, operator, or manager is aware of
such conduct. Any act or omission of any employee or independent contractor
constituting a violation of the provisions of this Part shall be deemed an act or omission
of each owner, operator and manager for purposes of determining (a) compliance with
this Part, and (b) whether the massage establishment permit shall be revoked, denied,
or renewed.
3669.2 — INSPECTION BY CITY OFFICIALS
Any duly authorized official of the City, including but not limited to, the City police,
designated representatives, code enforcement officers, health officials and building and
fire inspectors, shall have the right to enter any massage establishment premises from
time to time during regular business hours prior to the issuance of a massage
establishment permit and subsequently thereafter for the purposes of making
reasonable inspections to ensure compliance with this Part, with applicable laws, and
with building, fire, electrical, plumbing or health and safety regulations.
3669.3 — 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 Part shall be guilty of a
misdemeanor, punishable by a fine of one thousand dollars ($1,000.00) 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 Part to continue shall constitute a separate and subsequent offense.
3669.4 — UNLAWFUL OPERATION DECLARED NUISANCE
Any massage establishment operated, conducted or maintained contrary to the
provisions of this Part 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. Section 3141 (Definitions) of Part 4 (Definitions) of Chapter 1 (General
Business Regulations) of Article 3 (Business Regulations) of the Tustin City Code is
Ordinance No. 1462
hereby amended to delete the following terms and phrases (deletions shown in
strikethro irvh):
Massage
r
Massage
Any
establishment
having
a foxed
plaGe of buaA
1
Massage11
Massage1
Ger-tified
theMassage
by
Massage1 person who is Gertified by the Massage
SECTION IV. Subsection (a) of Section 9231 — Professional District (Pr) of Article 9 of
the Tustin City Code is amended to read as follows (deletions shown in strikethro irvh
additions shown in bold -italics):
"a. Permitted Uses
In the Professional District (Pr), only the following uses (or uses which, in
the opinion of the Community Development Director and/or the Planning
Commission, are similar) will be allowed subject to the development standards
identified in Table 1 of Section 9230 and/or as specified in this Chapter.
1. Accessory buildings and uses (except that no building site may be used
simultaneously for residential and professional purposes).
2. Advertising agencies.
3. Automobile broker (office -use only).
4. Banks, financial institutions, and savings and loans (no drive-thru).
Ordinance No. 1462
5. Collection agencies.
6. Home occupations in accordance with this Chapter.
7. Insurance agencies.
8. Interior decorator or artist studios.
9. Land and property management.
10. Management, technical or professional consultants.
I . Mas'age Est, Iishrmi-rents (SubjeGt to ArtiTGle 3 Chapter 6 Dart 6 of the
Tustin Gity Code)
114. Office uses, including professional and general (as defined in Section
9297).
124-3. Personnel agencies.
134-4. Pharmacies, dispensing and selling only drugs, medicines and health.
145. Photographers.
154. Single-family dwellings and those accessory structures, buildings and
uses normally incidental to the uses of a building or premises for single-
family occupancy subject to the requirements of the R1 District.
1647. Social work.
174. Stock brokers.
184. Title insurance companies.
1920. Travel agencies.
2024. Tutoring Facilities."
SECTION V. Subsection (c) of Section 9231 — Professional District (Pr) of Article 9 of
the Tustin City Code is amended to read as follows (deletions shown in strikethroi irrh
additions shown in bold -italics):
"c. Conditionally Permitted Uses
The following uses (or any other uses which, in the opinion of the
Community Development Director and/or the Planning Commission, are similar)
may be conditionally permitted in the Professional District (Pr) subject to the
issuance of a Conditional Use Permit and subject to the development standards
identified in Table 1 of Section 9230 and/or as specified in this Chapter.
1. Adult entertainment booking agencies (as defined in Section 3141 and
subject to the provisions set forth in Chapter 9).
2. Chiropractic offices, where massage services are provided as an
accessory use by anyone other than a state -licensed chiropractor
or other exempted professional as defined in Section 3665 of the
Tustin City Code (Subject to Article 3 Chapter 6 Part 6 of the Tustin
City Code).
Ordinance No. 1462
3.2. Drive-thru facilities.
4.3. Professional, instructional, motivational and/or seminar schools."
SECTION VI. Subsection (g) of Section 9263 of Article 9 of the Tustin City Code is
revised to read as follows (deletions shown in strikethro vrh, additions shown in bold -
italics):
"g. Parking Requirements By Land Use. The minimum number of parking
spaces to be provided for each use shall comply with Table 1.
TABLE 1: PARKING REQUIREMENTS BY LAND USE
Land Use Type
Parking Spaces Required
Personal services
1 space for each 250 sq. ft. of gross floor area
Barber/beauty shops (and other
personal services: massage
establishmentth, tanning salon)
SECTION VII. The definition of "Adult Business" in Section 9297 of Article 9 of the
Tustin City Code is amended as follows to remove "massage parlor" from said definition
(deletions shown in strikethro gh):
"Adult Business" shall mean any business which is conducted exclusively for the
patronage of adults, and as to which minors are specifically excluded from patronage
thereat, either by law or by the operators of such business. "Adult Business" shall also
mean and include adult bookstores, adult theaters, massage parlors, par, for , topless dancing,
stripping, figure modeling studios, adult motels or hotels, but shall not include those
uses or activities the regulation of which are preempted by state law."
SECTION VIII. The definition of "Massage Establishment" in Section 9297 of Article 9
of the Tustin City Code is amended as follows (deletions shown in strikethrn„nh
additions shown in bold -italics):
"Massage Establishment" shall be defined as set forth in Section 3662 341 of
the Tustin City Code.
SECTION IX. Effective Date. 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 the Ordinance and cause this Ordinance to be published as required by law.
Urgency Ordinance No. 1451, as extended, shall be repealed as of effective date
of this Ordinance.
Upon the effective date of this Ordinance, all massage establishments and
masseurs will be required to comply with the standards of conduct and operational
requirements set forth herein. The massage establishment permit application
Ordinance No. 1462
requirements contained in this Ordinance shall apply to all new massage
establishments and renewals of previously approved massage establishment permits.
SECTION X. CEQA Exemption. The City Council finds that the proposed Ordinance is
not subject to the California Environmental Quality Act ("CEQA"; Cal. Pub. Resources
Code Section 21000 et seq.) pursuant to Section 15061(b)(3) of the State CEQA
Guidelines (Cal. Code of Regs., title 14, Section 15000 et seq.) because it can be seen
with certainty that there is no possibility that the activity in question may have a
significant effect on the environment.
SECTION XI. Severability. If any section, sub -section, clause or phrase in this
Ordinance or the application thereof to any person or circumstances is for any reason
held invalid, the validity of the remainder of this Ordinance or the application of such
provisions to other persons or circumstances shall not be affected.
PASSED AND ADOPTED, at a regular meeting of the City Council of the City of
Tustin on this 20th day of October, 2015.
CHARLES E. PUCKETT, Mayor
ERICA N. RABE, City Clerk
Ordinance No. 1462
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF TUSTIN )
CERTIFICATION FOR ORDINANCE NO. 1462
ERICA N. RABE, City Clerk and ex -officio Clerk of the City Council of the City of Tustin,
California, do 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 1462 was duly
passed and adopted at a regular meeting of the Tustin City Council held on the 20th day
of October, 2015, by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
ERICA N. RABE, City Clerk
Ordinance No. 1462