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HomeMy WebLinkAboutORD 1368 (2009)ORDINANCE NO. 1368 AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, AMENDING PART 2 OF CHAPTER 6 OF THE TUSTIN CITY CODE, RELATING TO REGULATION OF MASSAGE ESTABLISHMENTS AND MASSAGE THERAPISTS FOR A PERIOD OF FORTY-FIVE DAYS PENDING THE COMPLETION OF A STUDY OF THE REGULATIONS AND IMPLEMENTATION GUIDELINES ANTICIPATED FROM THE MASSAGE THERAPY COUNCIL APPLICABLE TO THE REGULATION OF MASSAGE THERAPISTS UNDER RECENT STATE LEGISLATION. (4/5ths Vote Required.) The City Council of the City of Tustin ordains: SECTION 1. This interim urgency ordinance is adopted pursuant to Section 65858 of the California Government Code. SECTION 2. Part 2 of Chapter 6 of the Tustin City Code, entitled "Massage Establishments and Massage Therapists" is amended to read: PART 2 MASSAGE ESTABLISHMENTS AND MASSAGE THERAPISTS 3621.01 Purpose and intent. It is the purpose and intent of this Part to provide for the orderly regulation of massage establishments and their massage therapists and employees in the City. 3621.02 Definitions. For the purpose of this Part, the words, terms, and phrases set forth in this Section shall have the meanings herein set forth unless the context clearly requires a different meaning. "City's Building Codes" means the various codes adopted and amended pursuant to Sections 8100 through 8927 inclusive of the Tustin City Code. "Conviction" or "convicted" means a verdict or formal judgment of guilt, or entry of a plea of guilty or nolo contendere in a criminal proceeding. "Director" shall mean the Director of the Community Development of the City or the Director's designee. "Manager" means a person who has been designated by an operator to be responsible for the operation of a licensed massage establishment. "Massage" or "Massage therapy" means any method of pressure on, or friction against, or -~ stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus, or other appliances or devices, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment, or other similar preparations. 1 "Massage establishment" means any business conducted within the City of Tustin where any person, firm, association, partnership, corporation, or combination of individuals engages in, conducts, carries on, or permits to be engaged in, conducted or carried on for money or any other consideration, administers to another person a massage, bath, or health treatment involving massages or baths. "Massage therapist," "Massage technician," and Massage Practitioner" means any person who administers massages, baths, or health treatments involving massages or baths as the principal functions to another person for any consideration whatsoever, and meets the training and certification requirements established herein. "Massage Therapy Organization" or "MTO" shall mean the non-profit organization established by SB 731 (Chapter 384, 2008 Statutes), Business and Professions Code sections 4600 et seq., and authorized to issue massage practitioner or therapist certificates on a statewide basis pursuant to section 4600(g). "National Certification Board for Therapeutic Massage and Bodywork" or "NCBTMB" means the National Certification Board for Therapeutic Massage and Bodywork, which is a not-for- profit organization accredited by the National Commission for Certifying Agencies having its principle offices located at 8201 Greensboro Drive, Suite 300, McLean, VA 22102. "National Certification Examination for Therapeutic Massage and Bodywork" or "NCE" means the National Certification Examination for Therapeutic Massage and Bodywork developed and administered by the NCBTMB. "Operator" means a person who has been issued a license to operate a massage establishment. "Person" means any individual, firm, association, partnership, corporation, joint venture, limited liability company, or combination of individuals. "Police Chief' means the Police Chief of the City of Tustin or the Police Chief's designee. "Recognized school of massage" means any school or institution of learning which teaches, through state certified instructors, the theory, ethics, practice, profession, or work of massage, which school or institution complies with the California Education Code, including but not limited to Section 94900, 94905, or 94915, and which requires a resident course of study before the student shall be furnished with a diploma or certificate of graduation. Schools offering a correspondence course not requiring actual attendance shall not be deemed a recognized school. 3622.01 Permit Requirements. A. It shall be unlawful for any person, to own, operate, manage, engage in, conduct, or carry on, in or upon any premises within the City, a massage establishment without a massage operator permit obtained in accordance with this Part. B. A massage operator permit shall only be issued to the person signing the application, after compliance of this Part and all other applicable provisions of this Code, including, but not limited to, the payment of the appropriate application fees, unless grounds for denial of the 2 massage establishment permit are found to exist. C. No operator permit shall be issued to a person pursuant to this Part unless: (i) the massage establishment is located and conducted on the premises of a fixed location within the City; (ii) the massage establishment is located and conducted within a zoning district that permits such uses; and (iii) an occupancy permit has been issued by the City for the massage establishment. D. A separate license shall be obtained for each separate massage establishment owned, operated, or managed by such person. 3622.02 Application for massage establishment operator's permit. A. Any person desiring an operator's permit for a massage establishment business shall file a written application on the required form with the Director, who shall conduct an investigation. The application shall be accompanied by a filing fee as established by resolution of the City Council to conduct the investigation and process the application on the City's behalf. The City may also establish by resolution of the City Council an appropriate filing fee, which represents the City's costs to conduct the investigation and process the application. The application is completed and signed by the operator of the proposed massage establishment, if a sole proprietorship; one general partner, if the operator is a partnership; one officer or one director, if the operator is a corporation; and one participant, if the operator is a joint venture. The application for permit does not authorize operation of a massage establishment unless and until such permit has been properly granted. The application shall contain or be accompanied by the following: 1. The type of ownership of the business, i.e., whether by individual, partnership, corporation, or otherwise. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of that corporation. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners, including limited partners. If it is a limited partnership, it shall furnish a copy of its certificate of limited partnership filed with the Secretary of State. If one or more of the partners is a corporation, the provision of this subsection pertaining to corporations shall apply. The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer. Such designated persons shall complete and sign all application forms required for an individual applicant under this chapter, but only one application fee shall be charged. 2. The precise name under which the massage establishment is to be conducted. 3. The complete address and telephone numbers of the massage establishment. 4. A complete current list of the names and residence addresses of all proposed massage technicians, MTO certificate holders, and employees in the massage establishment and the name and residence addresses of the manager or managing employee proposed to be principally in charge of the operation of the massage 3 establishment, together with copies of MTO certificates or technician permits, as the case may be. 5. A description of any other business operated on the same premises, or within the city, or within the state, which is owned or operated by the applicant. 6. The following personal information concerning the applicant: a. Full complete name and all aliases used by the applicant. b. Current address and all previous residential addresses for seven years immediately preceding prior to the present address of the applicant. c. Acceptable proof that the applicant is at least eighteen (18) years of age. d. Height, weight, color of hair, eyes, and sex. e. Two front faced portrait photographs at least two inches by two inches in size. f. The applicant's complete business, occupation, and employment history for seven years preceding the date of application, including, but not limited to, the massage or similar business history and experience of the applicant. g. The complete massage permit history of the applicant; whether such person has ever had any permit or license issued by any agency, board, city, county, territory, or state; the date of issuance of such a permit or license, whether the permit or license was denied, revoked, suspended or refused to be renewed; or of a vocational or professional license or permit was denied, revoked, suspended or refused to be renewed; and the reason therefore. h. All criminal convictions, including pleas of nolo contendre, within the last ten years including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefor. i. A complete set of fingerprints taken in a manner approved by the Police Chief. 7. The name and address of the owner and lessor of the real property upon or in which the business is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the property that a massage establishment will be located on his or her property. 8. An acknowledgment that the city, its agents and employees will seek verification of the information contained in the application pursuant to Business and Professions Code section 4612(b)(7)(B). 9. A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct. 10. If, during the term of a permit, the permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the Police Department of such change within ten business days thereafter, in writing. 3622.03 Massage establishment operator's permit issuance and denial. 4 Upon receipt of a complete application for a permit, the Director shall conduct an investigation to ascertain whether such permit should be issued. The Director shall within thirty (30) days of receipt of a complete application, approve, conditionally approve, or deny the application. The thirty (30) day period may be extended by the Director for up to thirty (30) additional days, to complete the investigation. The Director shall issue such permit as requested, unless he or she makes any of the following findings: 1. The applicant, if an individual, or any of the officers or directors of the corporation, if the applicant is a corporation; or a partner, if the applicant is a partnership, or any person directly engaged or employed in the massage establishment, has within seven years preceding the date of the application: a. Been convicted of a violation of California Penal Code sections 266h, 266i, 314, 315, 316, 318, Subsections (a), or (b) of Penal Code Section 647 or any other provision of law pursuant to which a person is required to register under the provisions of Penal Code Section 290, or when the prosecution accepted a plea of guilty or nolo contendere to a charge of a violation of California Penal Code Section 415 or any lesser included or lesser related offense, in satisfaction of or as a substitute for, any of the previously listed crimes. b. Been convicted of a violation of Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution, or possession of a controlled substance specified in Health and Safety Code Section 11054, 11055, 11056, 11057 or 11058. c. Been convicted of any offense in any other state which is the equivalent of any of the above-mentioned offenses. d. Been engaged in conduct in another jurisdiction which, if it had occurred within the city, would constitute grounds for denial, suspension, or revocation under this chapter. e. Been subjected to a permanent injunction against the conducting or maintaining of nuisance pursuant to Sections 11225 through 11235 of the California Penal Code, or any similar provisions of law in a jurisdiction outside the state. f. Engaged in conduct which would constitute an offense as described in subsection (A)(1)(a) of this section. g. Committed an act in another jurisdiction, which if committed in this state would have been a violation of law or, which, if done by a permittee under this chapter, would be grounds for denial, suspension or revocation of the permit. h. Been convicted of an act involving dishonesty, fraud, deceit or an act of violence, which act or acts are related to the qualifications, functions, or duties of the operator. i. The applicant has had a massage operator permit, MTO certificate, massage technician permit or other similar license or permit denied, suspended, revoked, or refused to be renewed for cause by a licensing authority or by any city, county, or state. 2. The applicant has made a false, misleading, or fraudulent statement or omission of fact to the city in the permit application process. 3. The application does not contain all of the information required by Section 3622.02 of this Part. 5 4. The massage establishment as proposed by the applicant does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards. 5. If the application is denied for failure to comply with subsections A-2 or A-3 of this section, the applicant may not reapply for a period of one year from the date the application was denied. 6. The applicant, or any of the applicant's employees or independent contractors, has violated a provision of Business and Professions Code sections 4600-4613. 3622.04 Massage establishment operating requirements. A. No massage operator permit shall be issued unless an inspection by the City of Tustin reveals that the massage establishment complies with each of the following regulations: 1. A recognizable and readable sign shall be posted at the main entrance, identifying the establishment as a massage establishment, provided that all such signs shall comply with the Tustin Sign Code. 2. Minimum lighting shall be provided in accordance with the City Building Codes. In addition, a light level of no less than five (5) foot candles shall be maintained in public rooms, walkways, and at any point within each room or enclosure where massage services are performed, at all times such services are being provided. 3. Minimum ventilation shall be provided in accordance with the Uniform Building Code. 4. Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be provided which are approved by the department or agency designated by the City Manager to make inspections for compliance with health standards. 5. Pads used on massage tables shall be covered in a workmanlike manner with durable, washable plastic or other waterproof material acceptable to the department or agency designated by the City Manager to make inspections for compliance with health standards. 6. In any massage establishment in which massage services are rendered only to members of the same sex at anyone time, such persons of the same sex may be placed in a single separate room or the massage operator may elect to place such persons of the same sex in separate enclosed rooms or booths having adequate ventilation to an area outside said room or booth while massage services are being performed. 7. Adequate bathing, dressing, locker, and toilet facilities shall be provided for patrons, except that dressing and locker facilities shall not be required if all patrons remain fully clothed while in the massage establishment, and bathing. facilities shall be required only when the massage establishment provides steam rooms or sauna baths. If applicable, a minimum of one tub or shower, one dressing room containing a separate locker for each patron to be served, which locker shall be capable of being locked, as 6 well as a minimum of one (1) toilet and one (1) wash basin shall be provided by the massage establishment, provided, however, that if male and female patrons are to be served simultaneously at the establishment, separate bathing, separate dressing, and separate toilet facilities shall be provided for male and female patrons. Where steam rooms or sauna baths are provided, if male and female patrons are to be served simultaneously, separate steam rooms or sauna rooms shall be provided for male and female patrons. Hot and cold running water under pressure shall be provided to all wash basins, bathtubs, showers, and similar equipment. Each wash basin shall be provided with soap or detergent and sanitary towels placed in permanently installed dispensers. A trash receptacle shall be provided in each toilet room. 8. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments, and toilet rooms shall be thoroughly cleaned each day the business is in operation. Bathtubs shall be thoroughly cleaned after each use. 9. Clean and sanitary towels and linens shall be provided for each patron of the establishment or each patron receiving massage services. No common use of towels or linens shall be permitted. Towels, sheets, and linens shall be provided in sufficient quantity and shall not be used by more than one (1) person unless they have been first re-laundered. Separate closed cabinets or containers shall be provided for the storage of clean and soiled linen and shall be plainly marked: "clean linen," "soiled linen." 10. A minimum of one separate wash basin shall be provided in each massage establishment for the use of employees of any such establishment, which basin shall provide soap or detergent and hot and cold running water at all times, and shall be located within or as close as practicable to the area devoted to the performing of massage services. In addition, there shall be provided at each wash basin sanitary towels placed in permanently installed dispensers. B. All massage establishments, their owners, operators, and managers are subject to the following massage establishment operating conditions: 1. Except to the extent required, in writing, by a state licensed medical practitioner, no massage establishment employee or independent contractor shall massage the genital, buttock, or anal area of any patron or the breasts of any female patron, nor shall any operator or manager of a massage establishment allow or permit such massage. No massage operator or designated manager while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, buttocks, anus, or, in the case of female, her breast(s), are fully covered. 2. No person granted a permit pursuant to this chapter shall use any name or conduct business under any designation not specified in his or her permit. 3. All massage establishments required to be licensed under this chapter shall have µ.~ ~ a manager on the premises at all times the massage establishment is open. The operator of each massage establishment shall file a statement with the Director 7 designating the person or persons with power to act as a manager. The operator and/or on-duty manager shall post, on a daily basis, the name of each on-duty manager and each on-duty technician in a conspicuous public place in the lobby of the massage establishment. The operator, or the manager in the operator's absence, shall be responsible for ensuring compliance with this chapter. All operators and/or on-duty managers must be able to communicate effectively with city regulatory officials. 4. No licensed establishment shall be open for business without having at least one massage technician, or MTO certificate holder on the premises, and on duty, at all times when said establishment is open and ready to perform massage therapy. 5. The operator shall ensure that copies of massage technician permits or MTO certificates, as the case may be, are prominently displayed for each individual authorized to perform massage in a conspicuously public place in the lobby. Such identification shall be provided to city regulatory officials upon demand. 6. No operator or manager shall employ or retain any person to perform massage therapy who does not have a valid massage technician permit or MTO certificate. Every operator or manager shall report to the Director any change of employees/independent contractor, whether by new or renewed employment, discharge or termination, on the form and in the manner required by the Director. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within five days of the hire or termination. The operator shall deliver the permit and photo identification card of any massage technician/independent contractor no longer employed by the operator to the Director within five days. 7. All persons employed or retained in the massage establishment shall be fully clothed at all times. Clothing shall be of a fully opaque, nontransparent material and shall provide complete covering from mid-thigh to three inches below the collar bone. 8. The operator and/or on duty manager shall maintain a register of all employees/independent contractors, showing the name, nicknames, and aliases used by the such person, home address, age, birth date, sex, height, weight, color of hair and eyes, phone numbers, social security number, date of employment and termination, if any, and duties of each employee. The above information on each employee shall be maintained in the register on the premises fora period of two years following termination. The operator and/or manager on duty shall make the register of employees available immediately for inspection by police upon demand of a representative of the Police Department at all reasonable times. 9. Pursuant to Business and Professions Code section 4612(c), the massage establishment permittee is responsible for the conduct of all employees and independent contractors working on the business premises. Accordingly, an operator's permit may be suspended or revoked based also upon violations of this chapter committed by the permittee's employees or independent contractors. 3623.01 Applicability of city massage technician permit requirements. 8 A. No person shall perform or administer a massage unless such person has a valid massage technician permit, excepting those persons who are MTO certificated as described in subsection (b) of this section. B. After September 1, 2009, any person having received, and presented proof of, a valid MTO massage practitioner or therapist certificate shall be exempt from the massage technician permit requirements of this section in accordance with Business and Professions Code sections 4600 et seq. C. Beginning September 1, 2009, Business and Professions Code sections 4600 et seq. establishes a voluntary system of certification for individuals desiring to practice massage therapy. Therefore, any individual electing not to become MTO certificated shall be subject to the massage technician permit requirements contained within this chapter. 3623.02' Application for massage technician permit. A. Any person desiring a massage technician permit shall file a written application on the required form with the Director who shall conduct an investigation. The application is accompanied by an appropriate filing fee as may be established by the City Council by resolution. The application shall contain the following information: 1. A statement of the exact massage establishment location at which the applicant will be working as a massage technician, including the full street address and all telephone numbers associated with said fixed location, and the name and address of the massage establishment. 2. The following personal information concerning the applicant: a. Full complete name, and all aliases used by the applicant, along with complete residence address and telephone; b. All previous residential addresses for eight years immediately preceding the present address of the applicant; c. Acceptable written proof that the applicant is at least eighteen (18) years of age; d. Height, weight, color of hair and eyes, and sex; e. Two front faced portrait photographs at least two inches by two inches in size; f. The business, occupation, and employment history of the applicant for the eight years immediately preceding the date of the application; g. The complete permit history of the applicant and whether such person has ever had any license or permit issued by any agency, board, city, or other jurisdiction denied, revoked, suspended, or refused to be renewed and the reasons therefore. 3. All criminal convictions, including pleas of nolo contendere, within the last ten years, including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefor. 4. A complete set of fingerprints taken in a manner approved by the Police Chief. 5. Such other information and identification as the Director may require in order to discover the truth of the matters herein specified and as required to be set forth in the application. 9 6. Authorization for the City, its agents and employees to seek verification of the information contained in the application. 7. A statement in writing, and dated, by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct. 8. If during the term of a permit, a permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the Police Department of such change within ten business days thereafter, in writing. B. Each applicant must furnish the following information: 1. An original or certified copy of a diploma or certificate and certified transcript of graduation for completion of one thousand (1000) hours of instruction from an approved or recognized school of massage, wherein the method, practice, profession, theory, ethics, anatomical and physiological knowledge and practice of a massage technician is taught by state certified instructors. The applicant must also supply a course description, an outline of material covered, and a letter to the city from the school administrator verifying completion. a. The Director may consider an applicant's study of massage completed outside the state if proof of completion from a formalized course of study in massage practice, anatomy, and/or physiology is provided with the application. Proof of completion includes dates of study and the name, address, and phone number of the school attended. b. Any outside course of study submitted for approval meets the state of California's Office of Post-Secondary Education's minimum requirements and be for completion of one thousand (1000) hours of on-premises training. 2. Certification that within one year preceding the application, the applicant has taken and obtained a passing score on the test prescribed by the Director in accordance with this Chapter. a. The Director shall require one of the following eligible testing procedures to be applied to all applicants filing applications for massage technician licenses. In the event the Director is apprised of facts indicating that a testing procedure is impractical for the city to verify or to administer, then the Director may prescribe that the other eligible testing procedure shall apply to all applicants filing applications for massage technician licenses from and after the date of the Director's determination. The eligible testing procedures that may be prescribed by the Director are: i. That all applicants take and pass the then current NCE as developed, administered, and verified by the NCBTMB; or ii. That all applicants take and pass the then current "City Standardized Massage Technician/Practitioner Test" ("city test"). The city test is a written examination testing the applicant's knowledge of the basic subject matter, skills, and abilities needed to perform safe and therapeutic massage. The city test is developed by the Director, who may rely upon tests developed and administered by other state and local organizations. The city test is administered by the Director under conditions adequate to ensure the security and accuracy of the testing procedure. Each city test is 10 designated with a separate identification number for tracking purposes. Applicants are required to answer seventy (70) percent of the questions on the city test correctly in order to pass the test. The score is calculated based on individual test results and is not dependent upon the performance of a group of test takers (i.e., is not graded on a "Bell curve"). The City Council may, by resolution, set and charge a fee for taking the city test. An applicant who fails to pass the city test is not eligible to take the city test until thirty (30) days after the previous city test. An applicant who fails to pass upon a second attempt is not again eligible until six months thereafter. An additional processing fee may be required to be filed with the Director prior to taking each city test. The city test will be in English. In the event the applicant does not read and write English sufficient to take and pass the city test, it is the responsibility of the applicant to, at their own expense, make arrangements with aCourt- certified interpreter to interpret the examination. Proof of Court certification must be provided to the city prior to the administration of the examination. b. If the testing procedure prescribed by the Director is the NCE administered by the NCBTMB, then the applicant shall satisfy this subdivision by causing the NCBTMB to mail, directly to the city, a certificate indicating the applicant has taken the NCE and that the applicant obtained the score on that NCE required by NCBTMB to pass that NCE. If the testing procedure prescribed by the Director is the city test, then the applicant shall state the date upon which the city test was taken and the identification number provided on the test, so that the Director can verify the taking and passing of the test. c. Exception. A massage technician is exempt from the testing requirements set forth in Section 4-28.070(8)(2) if he or she has satisfied both of the following requirements: i. The massage technician has received at least thirty-two (32) hours of specialized instruction and training in prenatal and perinatal massage therapy from Body Therapy Associates or Bodywork for the Childbearing Year, or another institution approved by the Director; and ii. The massage technician is currently employed by a licensed massage establishment/operator that provides prenatal and perinatal massage therapy services to at least fifty (50) percent of its clientele. 3623.03 Massage technician permit issuance and denial. Upon receipt of a complete application for a permit, the Director shall conduct an investigation in order to ascertain whether such permit should be issued as requested. The Director shall shall approve, conditionally approve, or deny the application within thirty (30) days of the filing complete application. The thirty day period may be extended for up to thirty (30) additional days by the Director to complete the review process. The Director shall issue such permit as requested unless any of the following findings are made: 1. The applicant has within eight years preceding the date of the application been convicted of any of the following: a. A violation of Penal Code Sections 266(h), 266(i), 314, 315, 316, 318, subsections (a) or (b) of Penal Code Section 647 or that the applicant is required A ~ to register under the provisions of Penal Code Section 290, or when the prosecution accepted a plea of guilty or nolo contendre to a charge of a violation 11 of California Penal Code Section 415 or any lesser included or lesser related offense, in satisfaction of or as a substitute for, any of the previously listed crimes; b. A violation of Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058; or c. Any offense in any other state which is the equivalent of any of the above- mentioned offenses in subsections (A)(1)(a) or (A)(1)(b) of this section. 2. The applicant has engaged in conduct in another jurisdiction which, if it had occurred within the city, would constitute grounds for denial, suspension, or revocation of the massage technician permit under this chapter. 3. The applicant has been convicted of an act involving dishonesty, fraud, deceit or an act of violence, which act or acts are substantially related to the qualifications, functions, or duties of a massage technician. 4. The applicant has had a massage establishment permit or massage technician permit or other similar license or permit denied, suspended, revoked, or refused to be renewed for cause by a licensing authority or by any city, county or state within eight years prior to the date of the application. 5. The applicant has knowingly made a false, misleading, or fraudulent statement or omission of fact to the city in the permit application process. 6. The applicant has not complied with Section 3623.02-B of this Part. 7. The application does not contain the information required by Section 3623.02-Aof this Part. 8. If the application is denied for failure to comply with subsections A-5 or A-7 of this section, the applicant may not reapply for a period of one year from the date the application was denied. 9. The applicant has violated a provision of Business and Professions Code sections 4600-4613. 12 3623.04 Massage technician operating requirements. Any person performing massage therapy under a technician permit or MTO certificate ("the permittee") shall comply with the following conditions: 1. Except to the extent required, in writing, by a state licensed medical practitioner, no permittee shall massage the genital, buttock, or anal area of any patron or the breast(s) of any female patron. No permittee, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, buttock, anus, or, in the case of female, her breast(s), are fully covered. 2. No permittee shall massage any patron unless the person's genitals, buttocks, anus, and in the case of a female, her breast(s), are fully covered at all times. 3. The permittee shall have their massage technician permit or MTO certificate on their person at all times when present in the massage establishment. Such identification shall be provided to city regulatory officials upon demand. 4. No permittee shall perform any massage at any location other than the location specified on the permit. 5. While on duty, no permittee shall use any name other than that specified on the permit. 6. Each permittee shall be fully clothed at all times. Clothing shall be of a fully opaque, non-transparent material and provide the complete covering from mid-thigh to three inches below the collar bone 3624 Change of Ownership A. A massage establishment operator shall report to the Director within ten (10) days any and all changes of ownership or management of the massage establishment, including, but not limited to, changes of manager or other person principally in charge, stockholders holding more than five (5) percent of the stock of the corporation, officers, directors, and partners in any and all changes of name, style, or designation under which the business is to be conducted, and all changes of address or telephone numbers of the massage business. A change of location of any premises may be approved by the Director, provided there is compliance with all applicable regulations of the City.. B. No massage establishment permit may be sold, transferred, or assigned by a permittee, or by operation of law, to any other person or persons. Any such sale, transfer, or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be null and void; provided ~d excepting, however, that if the permittee is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of such permit, and in such case, the permit, upon notification to the Director, shall be placed in the name of the surviving partners. A massage establishment permit issued to a corporation shall be deemed terminated and void when either any outstanding stock of the corporation is sold, transferred, 13 assigned after the issuance of a permit, or any stock authorized but not issued at the time of the granting of a permit is thereafter issued or sold; transferred, or assigned. No massage technician permit may be sold, transferred, or assigned by a permittee, or any operation of law, to any other person or persons. 3625 Exemption A. This Part does not apply to cosmetologists, barbers, or to persons licensed to practice any healing art pursuant to Business and Professions Code, Division 2, section 500 et seq., or the Chiropractic Act (collectively, "Healing Arts Practitioner"), when performing massage within the scope of his or her license. Such Healing Arts Practitioners shall be required to obtain a massage operator permit if their employees are proposed to engage in massage. B. Notwithstanding any other provision of law, this part applies to an employee of any person described in subsection a if the employee is engaged in, or is purported to be engaged in, the business of massage, and is located on the premises of a person described in subsection A. C. This Part does not apply to City permitted massage technicians who perform chair massage on fully clothed persons at public places. 3626 Inspection by Officials. Any and all investigating officials of the City shall have the right to enter establishments from time to time during regular business hours to make reasonable inspections and to observe and enforce compliance with building, fire, electrical, plumbing, or health regulations, and to ascertain whether there is compliance with the provisions of this Part. SECTION 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held out to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares that it would have adopted this ordinance and each section, subsection, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. SECTION 4. The City Council hereby finds, determines, and declares that this interim urgency ordinance adopted pursuant to California Government Code Section 65858 is necessary because: A. The City is authorized by Government Code Section 51031 to regulate massage establishments; however, the state legislature recently adopted SB 731 (Chapter 384, 2008 Statutes), Business and Professions Code sections 4600 et seq., which calls for the establishment of statewide standards and licensing procedures for persons engaging in massage therapy. B. SB 731 establishes anon-profit entity referred to in SB 731 as the "Massage Therapy Organization" and recently renamed as the "Massage Therapy Council" ("the MTC") with authority to license individuals on a voluntary basis statewide to perform massage service. The MTC, beginning not sooner than September 1, 2009 may begin issuing massage 14 practitioner and therapist certificates to qualified individuals. Accordingly, after September 1, 2009, any MTC certificated individual shall be exempt from massage technician licensing and testing requirements under law. C. Pursuant to Business and Professions Code Section 4612(a)(3), municipalities are authorized to enact licensing requirements for massage establishments consistent with the provisions of SB 731; however, the MTC is still the process of preparing final regulations and requirements, including adoption of standards for issuance of certificates to massage therapists and related criteria and practices. D. This interim ordinance will ensure that the City has adopted an ordinance that reasonably implements the provisions of SB 731 while City staff reviews and considers future promulgations and regulations from the state and the MTC while maintaining the current provisions of the Tustin City Code that promote the discouragement of massage establishments from degenerating into houses of prostitution SECTION 5. Ten days prior to the expiration of this interim urgency ordinance, and any extension thereof, the City Council shall issue a written report describing the measures which the City has taken to address the conditions which led to the adoption of this ordinance or any extension. SECTION 6. This interim urgency ordinance shall take effect immediately upon its adoption by afour-fifths (4/5) vote of the City Council. This interim urgency ordinance shall continue in effect for forty-five (45) days from the date of its adoption and shall thereafter be of no further force and effect unless, after notice pursuant to California Government Code Section 65090 and a public hearing, the City Council extends this interim urgency ordinance for an additional period of time pursuant to California Government Code Section 65858. PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin on this 4t" day of August, 2009. ATTEST: /~-~ PAM STOKER, LERK APPROVED AS TO FORM: DOUGLAS HOLLAND, CITY A TORNEY 15 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1368 was duly and regularly introduced and adopted at a regular meeting of the Tustin City Council, held on the 4~h day of August, 2009 by the following vote: COUNCILMEMBERAYES: Davert, Amante, Gavello, Nielsen, Palmer (5) COUNCILMEMBER NOES: None (p) COUNCILMEMBER ABSTAINED: None (p) COUNCILMEMBER ABSENT: None (p) ,---~ P ELA STOKE CITY CLERK 16