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HomeMy WebLinkAboutORD 1380 (2010)ORDINANCE NO. 1380 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, REPEALING PART 2 OF CHAPTER 6 OF ARTICLE 3 OF THE TUSTIN CITY CODE, ADDING PART 6 OF CHAPTER 6 OF ARTICLE 3 OF THE TUSTIN CITY CODE, AND AMENDING ARTICLE 3 AND ARTICLE 9 OF THE TUSTIN CITY CODE RELATING TO REGULATION OF MASSAGE ESTABLISHMENTS AND MASSAGE THERAPISTS AND PRACTITIONERS City Attorney Summary This orolinance updates the City's existing City Code regulations regarding massage establishments and massage therapists and massage practitioners in order to conform with recently enacted changes in State law. This ordinance also requires all massage therapists and massage practitioners to have massage therapist or massage practitioner certificates issued by the Massage Therapy Organization and eliminates the City's local massage technician permit process. Owners and operators of massage establishments are required to maintain City massage establishment permits. The City Council of the City of Tustin finds and declares as follows: WHEREAS, the permit requirements and restrictions imposed by this Ordinance are reasonably necessary to protect the health, safety and welfare of the citizens of the City; WHEREAS, the City is authorized pursuant to Government Code section 51031 to regulate massage and massage establishments. However, the State legislature has adopted SB 731 (Chapter 384, 2008 Statutes), Business and Professions Code sections 4600 et seq., which establishes statewide standards and certification procedures for massage practitioners and therapists engaging in massage therapy. Accordingly, this Ordinance is intended to be implemented consistent with SB 731; WHEREAS, when properly operated by trained personnel in accordance with the laws of the State and the ordinances of the City, massage establishments provide beneficial therapeutic services to the benefit of many residents of the City and surrounding communities. However, in the absence of regulation or effective enforcement, massage establishments have permitted crimes such as prostitution and the use and sale of illegal drugs. Such illegal activity has been documented by police reports in several cities in Orange Ordinance 1380 Page 1 of 24 County. The establishment of reasonable standards for issuance of massage establishment permits and restrictions on operations reduces the risks of illegal activity; WHEREAS, pursuant to Business and Professions Code section 4612(a)(3), municipalities are authorized to enact licensing requirements for massage establishments consistent with the provisions of SB 731. The restrictions and requirements contained in this Ordinance reduce the burdens on the City's police personnel and permit the deployment of police personnel such that more serious crimes may be prevented; WHEREAS, the regulations and restrictions contained in this Ordinance tend to discourage massage establishments from degenerating into houses of prostitution or sites for illegal drug use and sales, and the means utilized in this Ordinance bear a reasonable and rational relationship to the goals sought to be achieved; WHEREAS, on May 11, 2010, the Planning Commission conducted a noticed public hearing to consider the amendments proposed in this Ordinance, including proposed amendments to the Zoning Code, regarding massage establishments, and recommended that the City Council approve Code Amendment 10-003; WHEREAS, on June 1, 2010, the City Council proceeded with the first reading of this Ordinance and conducted a public hearing regarding the proposed Ordinance, including proposed zoning code amendments; WHEREAS, in order to comply with the requirements of SB 731, Section I of this Ordinance repeals existing provisions in Part 2 of Chapter 6 of Article 3 of the Tustin City Code regarding massage establishments and massage technicians, and Section II of this Ordinance replaces those provisions with a new Part 6 of Chapter 6 of Article 3 of the Tustin City Code entitled Massage Establishments"; WHEREAS, Sections III, IV and VII of this Ordinance make related changes to apply throughout Article 3 (Sections 3121, 3141, 3712, 3713, and 3714); WHEREAS, Sections V and VI of this Ordinance make amendments to the zoning code provisions of the Tustin City Code and its Definitions (Section 9297) to conform to the requirements of SB 731 [California Business and Professions Code Section 4612(b)(4)] that zoning requirements applicable to massage establishments are "no different than the requirements that are uniformly applied to other professional or personal services businesses", and other conforming changes; Ordinance 1380 Page 2 of 24 WHEREAS, the provisions in this Ordinance shall take effect on the 31St day after adoption; WHEREAS, the City will cease issuance of massage technician permits under the repealed provisions of the Tustin City Code on the effective date of this Ordinance, and thereafter all massage therapists and massage practitioners will be required to obtain and maintain certification by the statewide Massage Therapy Organization certification process established under SB 731; WHEREAS, massage technicians who have valid, existing massage technician permits issued by the City under the provisions of the Tustin City Code on the effective date of this Ordinance shall have a grace period until January 31, 2011, to allow them reasonable time to secure their MTO certifications; WHEREAS, the owners and operators of massage establishments that are operated pursuant to existing, valid massage operator permits under the provisions of the Tustin City Code on the effective date of this Ordinance shall have a grace period until January 31, 2011 to apply for and obtain from the City their new massage establishment permits required hereunder; THEREFORE, the City Council of the City of Tustin hereby ordains as follows: SECTION 1. Part 2 of Chapter 6 of Article 3 of the Tustin City Code, entitled "Massage Establishments and Massage Technicians" shall be repealed in its entirety, on the effective date of this Ordinance. SECTION II. Part 6 of Chapter 6 of Article 3 of the Tustin City Code entitled "Massage Establishments" is hereby adopted, as of the effective date of this Ordinance, to read in its entirety as follows: PART 6 MASSAGE ESTABLISHMENTS 3661 Purpose and intent. It is the purpose and intent of this Part to regulate the operation of massage establishments in the City for the protection of the health, safety and welfare of its operators, massage therapists and massage practitioners, employees, clients, and the general public. 3662 Definitions . The definitions set forth in apply in this Chapter. In addition, ~~ otherwise requires, the definitions govern the construction, meaning, --`- phrases used in this chapter. Section 3141 of the Tustin City Code shall unless the particular provision or the context and provisions contained in this section shall and application of the following words and Ordinance 1380 Page 3 of 24 t "Certified" shall refer to one who has been issued a valid certificate in accordance with Sections 4600 through 4620 of the California Business and Professions Code. "Operator" means the individual who actively manages the massage establishment. Evidence of active management includes but is not limited to evidence that the individual has power to direct or hire, schedule, and dismiss employees and independent contractors, control hours of operation, and create policy or rules. An operator may also be an owner, however, an owner is only the "operator" for purposes of this Part if the owner actively manages and is regularly present at the location of the massage establishment more hours per week than any other individual who participates in the management of the massage establishment. If more than one person is a manager of a massage establishment, the "Operator" is the individual who actively manages and is regularly present at the location of the massage establishment more hours per week than any other individual manager. For purposes of enforcement of the requirements of this Part, "Operator" refers to the individual identified as the operator in the most recently issued massage establishment permit. "Owner" means the person(s) who owns the massage establishment as identified on the City of Tustin massage establishment permit. 3663 Massage certification required; Massage establishment permit required. (a) It shall be unlawful for any person to engage in, conduct or carry on, permit to engage in, in or upon any premises within the City of Tustin the business of providing massages in exchange for compensation unless the person providing massages is currently certified as a massage practitioner or massage therapist by the California Massage Therapy Organization. (1) Any person who possesses a "Massage Technician Permit" issued by the City of Tustin that is current and valid as of the effective date of this Ordinance, shall be exempt from the requirements of subsection (a) of this Section until January 31, 2011. Thereafter, all such persons shall be certified as required in subsection (a). (b) It shall be unlawful to commence or to continue to operate a massage establishment in or upon any premises within the City of Tustin without having a valid massage establishment permit issued pursuant to this Part. It shall be unlawful to operate a massage establishment at any time while a massage establishment permit is expired, cancelled, suspended or otherwise invalid. (1) Massage establishments holding a valid Tustin massage establishment permit as of the effective date of this Ordinance shall be exempt Ordinance 13 80 Page 4 of 24 from the requirements of subsection (b) of this Section until January 31, 2011. Thereafter, all such persons shall be required to comply with subsection (b). (c) No massage establishment permit may be sold, transferred, or assigned by a permittee, or by operation of law, to any other person or persons. Any such sale, transfer, or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be null and void; provided and excepting, however, that if the permittee is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of such permit, and in such case, the permit, upon notification to the Director, shall be placed in the name of the surviving partner(s). A massage establishment permit issued to a corporation shall be deemed terminated and void when either any outstanding stock of the corporation is sold, transferred, or assigned after the issuance of a permit, or any stock authorized but not issued at the time of the granting of a permit is thereafter issued or sold, transferred, or assigned. Except as expressly provided herein, a massage establishment may not be operated under a new owner or new operator until a new massage establishment permit is issued by the City of Tustin identifying both the new owner and new operator. (d) The operator identified in a massage establishment permit may become the owner and operator thereunder, and without the issuance of a new massage establishment permit, by notifying the City in writing of the change in ownership. 3664 Massage establishment or services -Massage Establishment Permit Apulication Requirements. (a) Prior to commencing operation of a massage establishment, the owner and operator desiring to operate the massage establishment shall apply for and obtain a massage establishment permit. The permit shall be valid for the period of time set forth for massage establishment permits in Section 3713. The application for the massage establishment permit for each massage establishment shall be made jointly by, and shall be signed by, both the owner and operator of that massage establishment. (b) All applicants for massage establishment permits shall provide the following relevant information about the owner, operator and establishment: (1) Information regarding the type of ownership of the business, i.e., whether the business is owned by individual, partnership, limited liability company (LLC), corporation, or otherwise: Ordinance 1380 Page 5 of 24 a. If the establishment is owned by a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation together with the state and date of incorporation and the name and residence address of each of its current officers and directors, and of each stockholder holding more than five (5) percent of the stock of that corporation. b. If the establishment is owned by a partnership or limited partnership, the application shall set forth the name and residence address of each of the partners, including limited partners, if any. In addition, if the establishment is owned by a limited partnership, it shall furnish a copy of its certificate of limited partnership filed with the Secretary of State. In addition, if one (1) or more of the partners is a corporation or LLC, the provisions of this subsection pertaining to corporations and LLCs shall apply. c. If the establishment is owned by an LLC, the application shall set forth the name and residence address of each manager and of each member. In addition, if the establishment is owned by an LLC, it shall furnish a copy of its articles of organization filed with the State. In addition, if one (1) or more of the members is a corporation or limited partnership, the provisions of this subsection pertaining to corporations and partnership shall apply. d. If the establishment is owned by an individual, the application shall set forth the full name and residence address of the owner, including all aliases. (2) If the establishment is owned by a corporation, partnership, LLC, or other entity (other than individual ownership), that entity shall designate one of its officers (in the case of a corporation), general partners (in the case of partnerships) or managers (in the case of an LLP) to act as its responsible managing officer. Such responsible managing officer shall complete and sign all application forms required for an individual applicant under this Part. (3) The precise name under which the massage establishment is to be conducted. (4) The complete address and telephone numbers of the massage establishment. (5) A complete current list of the names, all aliases, and current residence addresses of: a. the operator; Ordinance 1380 Page 6 of 24 b. all massage therapists and massage practitioners who will perform massages at the massage establishment, whether as employees or independent contractors of the massage establishment; c. all other proposed employees in the massage establishment; d. if the massage establishment will be managed in part by individuals other than the owner or operator, then the list shall include the name and residence address(es) of all such manager(s). A manager is the person(s) designated by the operator of the massage establishment to act as the representative and agent of the operator in managing day-to-day operations of the massage establishment. (See definition of "Operator" in section 3662. ) Owners and operators identified in the massage establishment permit shall be responsible for the actions of all managers, massage therapists, massage practitionerss, employees and independent contractors who are operating at, or in connection with, the massage establishment, whether or not the owner or operator is aware of the actions. (See sections 3669 - 3669.2 regarding enforcement in the event of violations of this Part.) (6) For each massage therapist and massage practitioner who will perform massage services at the massage establishment: a. a copy of the massage therapist's or massage practitioner's MTO certification; and b. a color passport-size photograph of the certificate holder. (7) The name and address of the owner and lessor of the real property upon or in which the business is to be conducted. If the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a signed acknowledgment from the owner of the property that a massage establishment will be located on his/her property. (8) If the massage establishment is owned by a corporation, LLC, partnership or other entity (other than an individual), the application shall include a description of any other business owned or operated by the owner, whether located on the same premises, or elsewhere within the State of California. Ordinance 1380 Page 7 of 24 (9) If the owner of the massage establishment is an individual who is not certified by the MTO, the application shall include all of the following information: (individual owners who are certified by the MTO are required to obtain a massage establishment permit but are not required to provide the information required in subsections (a) through (k) below): a. Full complete name and all aliases used by the owner; b. All residential addresses for eight (8) years immediately preceding the date of the application; c. A description (including name, type of business, address and phone numbers) of any other business owned or operated by the owner, whether located on the same premises, or elsewhere within the State of California; d. Proof of the owner's date of birth; e. Height, weight, color of hair and eyes, and sex of the owner; f. Two (2) front-facing portrait color photographs at least two (2) inches by two (2) inches in size; g. The owner's complete business, occupation, and employment history for eight (8) years preceding the date of application: h. The complete massage permit history of the owner; whether the owner has ever had any permit or license issued by any agency, board, city, county, territory, or state; the date of issuance of such a permit or license, whether the permit or license was denied, revoked, or suspended; or if a vocational professional license or permit was denied, revoked, or suspended; and the reason therefor; i. All criminal convictions of the owner, including pleas of nolo contendere, within the last five (5) years, and the date and place of each such conviction and reason therefor, including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding minor traffic violations; j. Evidence that a complete set of fingerprints of the owner was taken through the Livescan service; Ordinance 1380 Page 8 of 24 k. the owner's Social Security Number; and I. Authorization for the City, its agents and employees to seek verification of the information contained in the application. (10) If the operator of the massage establishment is an individual who is not certified by the MTO, the application shall include all of the following information (individual operators who are certified by the MTO are required to obtain a massage establishment permit but are not required to provide the information required in subsections (a) through (k) below): a. Full complete name and all aliases used by the operator; b. All residential addresses for eight (8) years immediately preceding the date of the application; c. A description (including name, type of business, address and phone numbers) of any other business owned or operated by the operator, whether located on the same premises, or elsewhere within the State of California; d. Proof of the operator's date of birth; e. Height, weight, color of hair and eyes, and sex of the operator; f. Two (2) front-facing portrait color photographs at least two (2) inches by two (2) inches in size; g. The operator's complete business, occupation, and employment history for eight (8) years preceding the date of application; h. The complete massage permit history of the operator; whether the operator has ever had any permit or license issued by any agency, board, city, county, territory, or state; the date of issuance of such a permit or license, whether the permit or license was denied, revoked, or suspended; or if a vocational professional license or permit was denied, revoked, or suspended; and the reason therefor; i. All criminal convictions of the operator, including pleas of nolo contendere, within the last five (5) years, and the date and place of each such conviction and reason therefor, including Ordinance 13 80 Page 9 of 24 those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding minor traffic violations; j. Evidence that a complete set of fingerprints of the operator was taken through the Livescan service; k. The operator's Social Security Number; and I. Authorization for the City, its agents and employees to seek verification of the information contained in the application. (c) The massage establishment permit application shall be accompanied with an application fee in such amount as the City Council may establish by Resolution or Ordinance. (d) In addition to a massage establishment permit, a massage establishment shall maintain a City business license and pay any business license tax when due. (e) The application for the massage business license does not authorize operation of a massage establishment or performing massage services until the massage establishment permit is issued. (f) It shall be the responsibility of each massage business owner and operator to file copies or provide other evidence of the certificates held by the persons who are providing massage services at the business. (g) It shall be the responsibility of each massage business owner and operator to provide written notification to the City at least fourteen (14) calendar days prior to renaming, changing management, or conveying the massage establishment business (or any portion thereof) to another person. 3665 Exemptions. (a) This Part does not apply to MTO-certified massage therapists or massage practitioners who perform chair massages on fully clothed persons in the view of the public. (b) Except as provided in subsection (c) below, the provisions of this Part shall not apply to individuals within the following professional categories while engaged in or performing the duties of their respective professions: (1) Physicians, surgeons, chiropractors, osteopaths, acupuncturists, and physical therapists, if duly licensed to practice in the State of California. Ordinance 1380 Page 10 of 24 (2) Registered or licensed vocational nurses duly registered by the State of California. (3) Licensed employees of hospitals, nursing homes, or other health care facilities duly licensed by the State of California when acting within the scope of their licenses. (4) Barbers and beauticians who are duly licensed under the laws of the State of California, while engaging in practices within the scope of their licenses. (5) Coaches and trainers employed by accredited high schools and colleges, therein while acting within the scope of their employment. (6) Trainers of any amateur, semi-professional or professional athlete or athletic team. (7) Physical therapist students, and massage therapist and massage practitioner students earning practical hours for school/education, and who are currently enrolled in a licensed program for physical therapy or massage therapy through a recognized school/education center, provided such students work under the direct supervision of an exempted professional as defined in this section. Direct supervision means that an exempted professional, as defined in this section, must be present at all times when a student is performing massages. (c) An exempted professional listed in subsection (b) above may himself/herself perform massages without an MTO certification or massage establishment permit. However, it shall be unlawful for any employee or independent contractor of an exempted professional listed in subsection (b) above to perform massages unless either: (1) all such employees and independent contractors performing massages are independently exempt professionals pursuant to subsection (b) above (in which event no massage establishment permit is required); or (2) if any one or more of the employees or independent contractors performing massages is not an exempt professional listed in subsection (b), the establishment is operated subject to a valid massage establishment permit issued pursuant to this Part. If a massage establishment permit is required under this paragraph, then the applicant for the massage establishment permit shall provide, as to each individual who performs massage services at the establishment, either of the following: Ordinance 1380 Page 11 of 24 the documents and information required by Section 3664(b)(6), or documentary evidence that such individual is an exempted professional listed in subsection (b) above. 3666 Massage establishment--Facilities. Every massage establishment shall maintain facilities meeting the following requirements: (a) Sin -subject to applicable provisions of the City's Codes, a recognizable and legible sign shall be posted at the main entrance identifying the business as a massage establishment. (b) Lighting -minimum lighting shall be provided in accordance with the Electrical Code adopted by the City and, in addition, at least one artificial light of not less than forty (40) watts shall be provided in each room or enclosure where massage services are performed on patrons and shall be activated at all times while a patron is in such room or enclosure. (c) Equipment -adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be provided. (d) Water -hot and cold running water shall be provided at all times. (e) Linen storage -closed cabinets shall be provided and utilized for storage of clean linens, and approved receptacles shall be provided for the deposit of soiled linen. (f) Separation of sexes - if male and female patrons are to be served simultaneously at the massage establishment, a separate massage room or rooms and separate dressing, bathing and toilet facilities (if provided) shall be provided and utilized for male and female patrons. Each separate facility or room shall be clearly marked as such. (g) Massac,Le table pads -pads used on massage tables shall be covered in a professional manner with durable, washable plastic or other waterproof material acceptable to Orange County Health Care Agency. (h) Steam rooms and sauna facilities -Where steam rooms or sauna baths are provided, if male and female patrons are to be served simultaneously, separate steam rooms or sauna rooms shall be provided for male and female patrons. 3667 Massaae establishment operation. Ordinance 13 80 Page 12 of 24 Every massage establishment shall comply with the following operating requirements: (a) Each person acting as a massage therapist or massage practitioner shall have a valid certificate issued by the Massage Therapy Organization, a clearly legible copy of which shall be conspicuously posted in the room or location where massage services will be provided. (b) It is unlawful for the owner, operator, responsible managing employee, manager or certificate holder in charge of or in control of the massage establishment to employ or permit a person to act as a massage therapist or massage practitioner who does not possess a valid massage therapist or massage practitioner certificate issued by the Massage Therapy Organization. (c) No business, except those exempted under section 3665 herein, may employ anyone to provide massage or allow anyone to massage unless the massage provider possesses a valid massage certificate issued by the Massage Therapy Organization. (d) Massage operations shall be carried on and the premises shall be open only between the hours of 6 a.m. and 10 p.m. A massage begun any time before 10 p.m. must nevertheless terminate at 10 p.m. No person, whether certified or not, may provide massage in exchange for compensation after 10:00 p.m. (e) A list of services shall be posted in an open, public place on the premises, and shall be described in readily understood language. No owner, operator, responsible managing employee, manager, or certificate holder shall permit, and no massage therapist or massage practitioner shall offer to perform any services other than those posted. (f) Any massage establishment or business shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services are certified by the Massage Therapy Organization. (g) Each massage therapist and massage practitioner shall wear a name tag displaying the name specified on their certificate while administering a massage and which shall be worn on outer clothing and be clearly visible. The massage therapist and massage practitioner shall not use any name other than specified on their certificate and name tag while on duty. (h) Massage therapists and massage practitioners shall be fully clothed at all times while in the presence of any other individual within the massage establishment. Clothing shall be of a fully opaque, non-transparent material and provide the complete covering from mid-thigh to three (3) inches below the collar bone. Ordinance 1380 Page 13 of 24 (i) Areas where massages are to be performed shall be separated by anon-lockable door unless there is no staff available to assure security for clients and massage staff who are behind closed doors. Said door shall not be equipped with a "peep hole" or any other device that allows anyone to see into or out of this room when the door is closed. Q) Towels and linens shall not be used on more than one (1) patron unless they have first been laundered and disinfected. Disposable towels and coverings shall not be used on more than one (1) patron. Separate closed cabinets or containers shall be provided for the storage of clean and soiled linen and shall be plainly marked: "clean linen," "soiled linen." (k) Wet and dry heat rooms, steam or vapor rooms or cabinets, shower rooms and compartments, toilet rooms and pools shall be thoroughly cleaned and disinfected as needed, and at least once each day the premises are open, with a disinfectant approved by the Health Department. Bathtubs shall be thoroughly cleaned after each use. All walls, ceilings, floors, and other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition. (I) Instruments utilized in performing massage shall not be used on more than one (1) patron unless they have been sterilized using approved sterilizing methods. Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be provided which are approved by the department or agency designated by the City Manager to make inspections for compliance with health standards. (m) Where a covering is furnished by the massage establishment, it shall not be used by more than one (1) patron until it has first been laundered and disinfected. (n) The owner or operator of the massage. establishment shall keep a complete and current list of the names and residence addresses of all massage therapists, massage practitioners and employees of the massage establishment, and the name and residence addresses of the manager or managing employee purported to be principally in charge of the operation of the massage establishment. This roster shall be kept at the premises and be available for inspection by officials charged with enforcement of this Part. (o) Every massage establishment shall keep a written record of the date and hour of each treatment administered, the name and address of each patron, the name of the massage therapist or massage practitioner administering treatment, and the type of treatment administered, to be recorded on a patron release form. Such written record shall be open to inspection by officials charged with enforcement of this Part. Such records shall be kept on the premises of the massage establishment for a period of two (2) years. In the event the massage establishment relocates, the records shall be retained at the new location. Ordinance 13 80 Page 14 of 24 (p) No part of the massage establishment shall be used for residential or sleeping purposes. (q) No person shall enter, be, or remain in any part of a massage establishment while in the possession of, consuming, or using any alcoholic beverage or illegal drug. Legal over-the-counter drugs and prescription drugs are permitted, provided the individual in possession of the prescription drug is the individual identified on the prescription label. The responsible owner, operator, managing employee, manager or permittee shall not permit any person in possession of illegal drugs to enter or remain upon such premises. (r) Every massage establishment shall be open at all times during hours during which massage is being provided for inspection by any officer of the City of Tustin. (s) All doors leading into a massage establishment or area where massages are being performed shall remain unlocked during business hours unless there is no staff available to assure security for clients and massage staff who are behind closed doors. (t) No massage establishment shall simultaneously operate as a school of massage, or share facilities with a school of massage. (u) An owner, operator or manager shall be at the massage establishment at all times when massages are being performed. 3668 Prohibited conduct . (a) A massage therapist or massage practitioner shall not violate the provisions of Sections 647(a) and (b) of the California Penal Code, or any other state law involving a crime of moral turpitude, and such practices shall not be allowed or permitted by anyone. (b) A massage therapist or massage practitioner shall be fully clothed at all times while in the presence of any other individuals in the massage establishment and shall not expose his or her genitals, pubic area, buttocks, or in the case of female therapists or practitioners, her breasts, and such practices shall not be allowed or permitted by anyone. (c) Except as expressly permitted herein, a massage therapist or massage practitioner shall not massage a patron of one sex within the view of a patron of the opposite sex, and such practices shall not be allowed or permitted by anyone unless all parties expressly consent to the treatment, location, and presence of the patron of the opposite sex. 1. This subsection shall not apply if all involved patrons are fully clothed, excluding socks or stockings. Ordinance 1380 Page 15 of 24 2. No more than one male and one female may consent to be massaged in the same treatment room. 3. No person under the age of 18 may consent to a massage in the presence of another unless the other patron present is the minor's parent or legal guardian, and the parent or legal guardian consents. (d) No more than two members of the same sex may consent to be massaged in the same treatment room unless all involved patrons are fully clothed, excluding socks or stockings. (e) A massage therapist or massage practitioner shall not massage, fondle, or otherwise have intentional contact with the genitals or anus of any patron, or the breasts of a female patron and such practices shall not be allowed or permitted by anyone. (f) A massage therapist or massage practitioner shall not give a massage unless the breasts of female patrons are covered and the genitals of all patrons are covered, and such practices shall not be allowed or permitted by anyone. (g) It shall be unlawful for a massage therapist or massage practitioner or any other person to perform, or to offer to perform, a massage for compensation in any private residence (including the private residence of a massage therapist or massage practitioner) or in a hotel or motel room. 3669 Responsibility . Pursuant to Business and Professions Code section 4612(c), the owner and operator of a massage business or establishment shall be responsible for the conduct of all employees and independent contractors working on the premises of the business. Accordingly, any massage establishment permit may be suspended or revoked based also upon violations of this Part committed by the permittee's employees or independent contractors, whether or not such violations occur without the actual knowledge of the owner or operator. 3669.1 Violation--Penalty . In addition to any other penalty or remedy set forth in the Tustin City Code (including all remedies available under Chapter 1 of Article 1 of the Tustin City Code) or set forth under State or Federal law, any person violating this chapter shall be guilty of a misdemeanor, punishable by a fine of one-thousand dollars ($1,000) per violation or by imprisonment in the county jail for a period not to exceed six (6) months, or by both such fine and imprisonment. Each day or portion thereof that a person permits a violation of this Chapter to continue shall constitute a separate and subsequent offense. Ordinance 1380 Page 16 of 24 3669.2 Unlawful operation declared nuisance . Any massage establishment operated, conducted or maintained contrary to the provisions of this chapter shall be and the same is hereby declared to be unlawful and a public nuisance. The City Attorney may, in addition to, or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings for abatement, removal or enjoinment thereof, in the manner provided by law. The City Attorney shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as shall abate or remove such massage establishment and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary to the provisions of this Part. SECTION III. Sections 3712, 3713 and 3714 of Article 3 of the Tustin City Code are hereby amended to read in their entirety as follows: 3712 -DENIAL An application for a permit, including renewal of a permit, may be denied for any of the following reasons: (1) The applicant has made material misrepresentations of fact or omitted material information required by the application; (2) The applicant does not meet the prerequisites for a permit as specified in this Article. The Director or the Planning Commission has the discretion to evaluate information presented to satisfy prerequisites and to determine its credibility or reliability; (3} In the case of a renewal, the permit may be also denied if the permittee has failed to abide by the operational regulations specified in this code or the conditions of the permit. The proposed denial of the renewal of a permit for these reasons shall be heard and decided by the Director or the Planning Commission. (4) In the case of an adult entertainment booking agency, massage establishment, or mobile ice cream vendor, if the applicant or any of his/her managers, supervisors, or employees have been convicted within the last five (5) years of any offense classified by the State of California as an offense involving sexual crimes against children, sexual abuse, rape, kidnapping, distribution of obscene material or material harmful to minors, prostitution or pandering, including, but not necessarily limited to, the violation of any crime requiring registration under California Penal Code Section 290, or any violation of Penal Code sections 243.4, 261, 261.5, 264.1, 266, 266a through 266k, inclusive, 267, 286, 286.5, 288, 288a, 311 through 311.10, inclusive, 314, 315, 316, or 647, or any offense Ordinance 1380 Page 17 of 24 outside the State of California that would constitute any of the above-described offenses if committed within the State of California, or if the applicant or any of his/her agents, managers, supervisors, employees, or independent contractors have been convicted within the five (5) years immediately preceding the application of any offense involving the sale of a controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058, or the possession for sale and/or possession of a controlled substance, as specified above, or been subjected to a permanent injunction against the conducting or maintaining of nuisance pursuant to Sections 11225 through 11235 of the California Penal Code, or any similar provisions of law in a jurisdiction outside the state. (5) Any applicant has engaged in conduct in the City or in another jurisdiction which, if it had occurred within the City, would constitute grounds for denial, suspension, or revocation under any Part under this Article. (6) Any applicant has been convicted within the five (5) years immediately preceding the application of an act involving dishonesty, fraud, deceit or an act of violence, which act or acts are related to the qualifications, functions, or duties of the permittee. (7) The application does not contain all of the information required by the Part applicable to the permit application. (8) In the case of a massage establishment: (a) the applicant has had a massage establishment permit, MTO certificate, massage technician permit or other similar license or permit denied, suspended, revoked, or refused to be renewed for cause by a permitting authority or by any city, county, or state; or (b) the massage establishment as proposed by the applicant does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards; or (c) the applicant, or any of the applicant's employees or independent contractors, has violated a provision of Business and Professions Code sections 4600-4613. Denial of permits, including renewals of permits, may be appealed in accordance with Part 3 of this Chapter. Ordinance 1380 Page 18 of 24 3713 -TERM Unless a different term is specified in this Article, permits shall be valid from the date of issuance until revoked or abandoned. Massage establishment permits shall be valid from the date of approval by the City until January 31 of the following calendar year, and shall be renewed annually on or before January 31 3714 -ANNUAL UPDATE Information required on the application for the original permit shall be updated and corrected by the applicant as appropriate on an annual basis, or as otherwise required by conditions of the permit. SECTION IV. Section 3141 of the Tustin City Code is amended to add the following definitions shown with underscored text and to delete the following definitions shown with strikeout text: omvensation. The aavment. loan. advance. donation. contribution. eposit. or sift of money or anything of value. "Massage" or "massage therapy" means anv method of pressure on. or friction against or stroking. kneading. rubbing. tapping, pounding. ibratina. or stimulating the external parts of the human body with the hands or with the aid of anv mechanical or electrical apparatus or ppliance, or with or without suaplementarv aids such as rubbing alcohol. liniment. antiseptic. oil. powder. cream. ointment. or other similar preparations commonly used in this practice. Ordinance 1380 Page 19 of 24 Massage establishment. Anv establishment having a fixed glace of usiness where anv person or combination of persons. engages _ in. onducts. carries on or permits to be engaged in, conducted or carried on. massages or health treatments involving massage. Massage operator. . See definition of "Operator" in section 3662. Massage practitioner. A person who is certified by the Massage Therapy raanization under Subdivision (b) of Section 4601 of the California Business and Professionals Code. and who administers massage for compensation. ~~ ~~ ,~ Massage therapist. A person who is certified by the Massage Therapy Organization under Subdivision (c) of Section 4601 of the California Business and Professions Code. and who administers massage for compensation. MTO or Massage Therapy Organization. The Massag e Therapy Organization describ ed in Sub division (c) of Section 4601 of th e California Business and Profes sions Cod e. Ordinance 1380 Page 20 of 24 ~ _ ~ . Person. An individual person. ioint venture. association. partnership limited liability company corporation or other entity. SECTION V. Article 9 of the Tustin City Code is amended as follows: Section 9232.a.2 is hereby repealed and replaced in its entirety as follows: 2. Service businesses, exemplified by the following list, including any retail sales incidental thereto, when conducted within a building: (a) Banks, financial institutions and savings and loans (including those providing drive-thru service) (b) Barber shops (c) Beauty parlors (d) Dance studios (e) Dry-cleaning or laundry agencies (pick-up and delivery only) (f) Equipment rental business conducted within a building (light materials i.e. party supplies, household appliances, small household tools, medical equipment, etc.) (g) Laundromats or other self-service laundering facilities (h) Locksmiths (i) Martial Arts studios (j) Massage Establishments Ordinance 13 80 Page 21 of 24 (k) Recycling facilities or reverse vending machines (as defined in Section 9297 and subject to the provisions set forth in Section 9271 bb) (I) Reprographics (m) Restaurants (not including drive-ins/drive-thru, take-out or walk-up) (n) Seamstress or millinery shops (o) Shoe or luggage repair shops (p) Smog check stations with service bays in conjunction with approved service station (q) Tailor shops (r) Travel agencies (s) Tutoring facilities Section 9232.b.18 is deleted. SECTION VI. The definition of "Massage establishment" in Section 9297 of the Tustin City Code is hereby deleted and replaced in its entirety to read as follows: "Massaae Establishment" shall be defined as set forth in Section 3141 of the __ Tustin Citv Code. SECTION VII. Section 3121 of the Tustin City Code is hereby repealed and replaced in its entirety as follows: 3121 -SCOPE/APPLICABILITY The business regulations in this Article shall apply to those businesses operating within the City and identified in this Article. Whenever the applicability of this Article to a particular business is subject to varying interpretation, the City Council shall be the final appeal body and final decision maker as to the scope of this Article and its application to a particular business. Ordinance 1380 Page 22 of 24 All businesses operating within the City of Tustin shall comply with the requirements of Article 3 regardless of when they began operating within the City. SECTION VIII. This Ordinance shall take effect on the 31 gt day after its adoption. The City Clerk or his or her duly appointed deputy shall certify to the adoption of this Ordinance and shall cause this Ordinance to be published as required by law. Urgency Ordinance No. 1371 shall be repealed as of the effective date of this Ordinance. SECTION IX. The City Council finds that this Ordinance is not subject to the California Environmental Quality Act pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, Cal. Code of Regs, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION X. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more section, subsection, subdivision, sentence, clause, phrase, or portion thereof be declared invalid or unconstitutional. PASSED AND ADOPTED, at a regular meeting of the City Council of the City of Tustin on this 15th day of June, "" " P ela Stoker City Clerk Ordinance 1380 Page 23 of 24 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) CERTIFICATION OF ORDINANCE NO. 1380 PAMELA STOKER, City Clerk and ex-ofiacio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1380 was duly and regularly introduced and read at the regular meeting of the City Council held on the 1ST day of June, 2010, and was given its second reading, passed and adopted at a regular meeting of the City Council held on the 16t" day of June 2010, by the following vote: COUNCILMEMBER AYES: Ai~ante, Nielsen, Davert, Palmer (4) COUNCILMEMBER NOES: (o> COUNCILMEMBER ABSTAINED: (o) COUNCILMEMBER ABSENT: Gavello (1) I'am a Stoker .City Clerk Published: Ordinance 13 80 Page 24 of 24