HomeMy WebLinkAbout03 - Massage Establishment RegulationsTO:
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TITLE:
ABSTRACT:
CTY OF
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NEWPORT BEACH
City Council Staff Report
February 24, 2015
Agenda Item No. 3
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
Jay R. Johnson, Chief of Police — (949) 644 -3701, jjohnson @nbpd.org
Jay Short, Lieutenant
(949) 644 -3778, jshort@nbpd.org
Massage Establishment Regulations
The City of Newport Beach's ( "City ") Police Department regulates massage establishments through a
permit process pursuant to Chapter 5.50 of the Newport Beach Municipal Code ( "NBMC "). Recently, the
California Legislature passed, and Governor Brown signed into law, Assembly Bill ( "AB ") 1147. AB 1147
expands the City's ability to regulate massage establishments to ensure they do not turn into public
nuisances within our community. The attached ordinance regulates massage establishments consistent
with AB 1147 and strikes an appropriate balance between the needs of the community and the rights of
persons to conduct their profession.
RECOMMENDATION:
a) Introduce Ordinance No. 2015 -2, An Ordinance of the City Council of the City of Newport
Beach Amending Newport Beach Municipal Code Chapter 5.50 Regulating Massage Establishments, and
repealing NBMC Chapter 5.64 regulating holistic health practitioners, and pass to second reading on
March 10, 2015; and
b) Adopt Resolution No. 2015 -9, A Resolution of the City Council of the City of Newport Beach Amending
the Master Fee Schedule to Eliminate Outdates Massage Fees, which will remove nine (9) outdated
massage technician fees.
FUNDING REQUIREMENTS:
There is no fiscal impact related to this item.
DISCUSSION:
Since 1994, the Police Department has regulated massage establishments pursuant to NBMC Chapter
5.50 through a City permit process. At inception, the motivation of the City permit process was to
discourage unethical practices of massage which may result in a violation of subdivision (a) or (b) of
Section 647 of the California Penal Code governing prostitution.
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In September 2008, the California Massage Therapy Council ( "CAMTC ") was created by an act of the
California Legislature and began accepting applications for massage certification in 2009. The CAMTC is
a private non - profit public benefit corporation providing voluntary certification that enables massage
therapists to practice statewide. CAMTC's mission is to protect the public by certifying qualified massage
professionals in California.
The legislative bill that gave authority to the CAMTC to regulate massage practices also removed authority
from local municipalities from enacting new ordinances or enforcing existing ordinances that conflicted with
Senate Bill No. 731. Therefore, certain sections within the current version of NBMC Chapter 5.50 are
unenforceable.
The Police Department supports the CAMTC and agrees with their mission to protect the public by
certifying qualified massage professionals in California. CAMTC certified professionals are recognized
throughout California for having met the State's educational requirements and passed an extensive
background check. Once approved, massage technicians are certified to work anywhere in California for
two (2) years without needing a City or county massage technician's permit.
In 2014, CAMTC was re- authorized with legislative changes written in AB 1147, becoming effective as of
January 1, 2015. AB 1147 authorizes the City to adopt and enforce local zoning, business licensing, and
reasonable health and safety requirements for massage establishments or businesses with CAMTC-
certified massage therapists and practitioners.
The proposed ordinance codifies the requirement of massage therapists conducting business within the
City to obtain and maintain in good standing, a CAMTC certification. In addition, it requires massage
establishment owners, managers, or responsible parties to obtain an "Operator's Permit" in order to further
facilitate the ethical practice of massage therapy and compliance with State law by relying upon the
uniform statewide regulations.
Finally, it will no longer be necessary to regulate massage services provided by holistic health practitioners
under NBMC Chapter 5.64 because any massage services provided by holistic health practitioners will be
covered under amended NBMC Chapter 5.50. Accordingly, the proposed ordinance repeals NBMC
Chapter 5.64 and deletes it in its entirety.
CONCLUSION:
The Police Department seeks City Council approval of the attached ordinance. In addition, the Police
Department requests permission to remove nine (9) fees from the City's Master Fee Schedule. The fees
to be removed regard services which are now outdated and no longer needed by the City. The fees to be
removed are: "Technician Application" (line 434), "Technician Renewal" (line 435), "Off Premises" (line
437), "Transfer" (line 438), "Holistic Health Operator" (line 439), "Holistic Health Practitioner' (line 440),
"Manager -Stand Alone" (line 441), "Chair" (line 442), and "Manager -Add On" (line 443). The fee for the
Operator's Permit, "Operator" (line 436), shall remain and be studied at a later date.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California Environmental Quality
Act ( "CEQA ") 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, California Code of Regulations, Title 14, Chapter 3,
because it has no potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at
which the City Council considers the item).
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ATTACHMENTS:
Description
Attachment A - Revised Massage Establishment Ordinance
Attachment B - Redline Version
Attachment C - Resolution Amending the Master Fee Schedule
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ATTACHMENT A
ORDINANCE NO. 2015-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AMENDING
NEWPORT BEACH MUNICIPAL CODE CHAPTER 5.50
REGULATING MASSAGE ESTABLISHMENTS
WHEREAS, the City of Newport Beach ( "City ") currently regulates massage
establishments pursuant to Chapter 5.50 of the Newport Beach Municipal Code
( "NBMC ") through a City permit process;
WHEREAS, in 2008, 2011 and 2014, the State Legislature adopted provisions in
the California Business and Professions Code to provide for State certification of
massage therapists and practitioners by a non - profit organization called the "California
Massage Therapy Council' ( "CAMTC ") (Bus. & Prof. Code §§ 4600- 4621);
WHEREAS, cities can adopt and enforce local zoning, business licensing, and
reasonable health and safety requirements for massage establishments or businesses
with CAMTC- certified massage therapists and practitioners;
WHEREAS, the City desires to reduce City involvement in local massage therapy
licensing, while still encouraging and facilitating the ethical practice of massage therapy
and complying with State law, by relying upon the uniform statewide regulations and by
restricting the commercial practice of massage in the City to those persons duly certified
to practice by the CAMTC;
WHEREAS, establishing one regulatory scheme for massage services will create
a consistent and clear process for applicants and will enable consumers to identify
legitimate massage professionals, thus protecting the health, safety, and welfare of the
City and its residents;
WHEREAS, Chapter 5.64 of the NBMC regulating holistic health practitioners is
no longer necessary in light of amendments to Chapter 5.50 of the NBMC, and thus it is
recommended that Chapter 5.64 be repealed; and
WHEREAS, this ordinance is enacted pursuant to California Government Code
sections 51030 -51934 and Business and Professions Code sections 4600 et seq.
NOW THEREFORE, the City Council of the City of Newport Beach ordains as
follows:
SECTION 1: Chapter 5.50 of the Newport Beach Municipal Code is hereby
amended and renumbered as follows:
Chapter 5.50
MASSAGE ESTABLISHMENTS
Sections:
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5.50.005 Findings and Purpose.
5.50.010 Definitions.
5.50.015 State Certification and Operator's Permit Required.
5.50.020 Application for Operator's Permit.
5.50.025 Operator's Permit Issuance and Denial.
5.50.030 Requirements of Operation.
5.50.035 Changes of Business.
5.50.040 Operator's Permit Exemptions.
5.50.045 Inspection by City Officials and Notices of Violation.
5.50.050 Operator's Permit Expiration and Renewal.
5.50.055 Suspension, Revocation, Denial and Appeal.
5.50.060 Fees.
5.50.065 Violation and Penalty.
5.50.070 Severability.
5.50.005 Findings and Purpose.
The City Council finds and declares as follows:
A. It is the purpose and intent of this chapter to provide for the orderly regulation of
offices and establishments providing massage therapy services, and to prevent and
discourage the misuse of massage therapy as a front for prostitution and related
activities in violation of state law, all in the interest of the public health, safety, and
welfare, by providing certain minimum building, sanitation, and operation standards for
such businesses, and by requiring certain minimum qualifications for the operators and
practitioners of such businesses. It is the further intent of this chapter to streamline local
massage therapy permitting procedures, while still facilitating and advancing the ethical
practice of massage therapy, by relying upon the uniform statewide regulations enacted
by the Legislature in 2008, 2011 and 2014 as Business and Professions Code sections
4600 et seq., and by restricting the commercial practice of massage in the city to those
persons duly certified to practice by the California Massage Therapy Council formed
pursuant to those statutes.
B. The restrictions and requirements contained in this chapter reduce the burdens on
the Police Department and permit the deployment of the police personnel such that
more serious crimes may be prevented.
C. The regulations and restrictions contained in this chapter tend to discourage
massage establishments from degenerating into houses of prostitution and the means
utilized in this chapter bear a reasonable and rational relationship to the goals sought to
be achieved.
5.50.010 Definitions.
Unless the context of the particular provision otherwise requires, the definitions and
provisions contained in this section shall govern the construction, meaning, and
application of words and phrases used in this chapter.
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"Approved School of Massage" means any school or institution of learning that is
recognized as an "approved school' pursuant to Business and Professions Code
Division 2, Chapter 10.5, as it may be amended.
"California Massage Therapy Council" means the massage therapy organization formed
pursuant to California Business and Professions Code section 4600, and following, as
amended, and referred to as CAMTC herein.
"Certified Massage Business" means any business where the only persons employed or
used by that business to provide massages services have current and valid State
Certifications.
"Certified Massage Technician" means any person holding a current and valid State
Certificate issued by the CAMTC pursuant to California Business and Professions Code
section 4600, and following, as amended, whether as a massage practitioner or
massage therapist, as defined therein.
"Certified Sole Proprietorship" means any massage business where the owner is the
only person employed or used by that business to provide massage services and the
owner has a current and valid unconditional State Certification.
"Chief of Police" means the Chief of Police of the City of Newport Beach, or his /her
designated representative.
"City" means the City of Newport Beach.
"City Council" means the City Council of the City of Newport Beach.
"City Manager" means the City Manager of the City of Newport Beach, or his /her
designated representative.
"Conviction," "convicted" means a plea or verdict of guilty or a conviction following a
plea of nolo contendere.
"Customer area" means areas open to customers of the establishment.
"Manager" means 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 with the same liabilities and responsibilities. Evidence of management
includes, but is not limited to, evidence that the individual has power to direct or hire and
dismiss employees, control hours of operation, create policy or rules or purchase
supplies. A manager may also be an owner.
"Massage" means any method of treating the external parts of the body for remedial,
hygienic, relaxation or any other reason or purpose, whether by means of pressure on,
friction against or stroking, kneading, tapping, pounding, vibrating, rubbing or other
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manner of touching external parts of the body with the hands, or with the aid of any
mechanical or electrical apparatus or appliance with or without supplementary aids such
as rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment or other similar
preparations commonly used in this practice.
"Massage establishment" means any business at a fixed location where massage is
performed for compensation, excluding those locations where massage is only provided
on an out -call basis.
"Operator" or "Owner" means any and all owners of a massage establishment that are
responsible for its day -to -day operations including any of the following persons: the
managing responsible officer /employee, a general partner, a limited partner, a
shareholder, a sole proprietor, or any person who has a five (5) percent or greater
ownership interest in a massage establishment whether as an individual, corporate
entity, limited partner, shareholder or sole proprietor.
"Operator's Permit" means a permit issued by the Police Department upon submission
of satisfactory evidence as required that a massage business or sole proprietorship
employs or uses only certified massage therapists or practitioners possessing valid and
current State Certifications and has satisfied all other requirements pursuant to the
provisions of this chapter.
"Person" means any individual, or corporation, partnership, association or other group
or combination of individuals acting as an entity.
"Police Department" means the Police Department of the City of Newport Beach.
"State Certification" or "State Certificate" means a valid and current certification properly
issued by CAMTC pursuant to California Business & Professions Code section 4600,
and following, as amended.
For purposes of this chapter the term "employee" shall include independent contractors.
5.50.015 State Certification and Operator's Permit Required.
On or after April 15, 2015, it shall be unlawful for any individual to practice massage for
compensation within the City unless that individual is a Certified Massage Technician
and further, it shall be unlawful for any massage establishment within the City to provide
massage services or allow massage services to be performed at the massage
establishment unless all individuals performing massage at the massage establishment
are Certified Massage Technicians.
In addition, it shall be unlawful for any person, association, partnership, company or
corporation to operate a massage establishment within the City without first obtaining an
operator's permit pursuant to this chapter, securing the necessary business license as
required by this Code, and complying with Title 20 of this Code.
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5.50.020 Application for Operator's Permit.
A. Any person desiring an operator's permit for a massage establishment shall file a
written application on the required form with the Police Department Civilian Investigator
who shall conduct an investigation. The application shall be accompanied by the
appropriate filing fee established by resolution of the City Council. The application shall
be 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 an operator's permit does not authorize operation of a
massage establishment unless and until such permit has been properly issued. The
application shall contain or be accompanied by the following information in writing:
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 provisions of this
subsection pertaining to corporations shall apply to that corporation. 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 full and true legal name under which the massage establishment will be
conducted.
3. The complete address and all telephone numbers of the massage establishment.
4. The full and true legal name and mailing address of the owner or owners of the
massage establishment.
5. A copy of a State Certificate issued to each person who will be providing
massage services at the massage establishment.
6. A copy of a photographic government- issued identification card of the owner or
owners of the massage establishment.
7. A statement that the business will only employ or use persons with a State
Certificate to provide massage services, and that failure to comply may result in
the suspension or revocation of the operator's permit.
8. A statement that the applicant will provide written notification of any changes to
the original application within 10 days of the change occurring.
9. Authorization for the City to investigate the truth of the information contained in
the application.
10.A statement by the applicant that he or she certifies under penalty of perjury that
all information contained in the application is true and correct.
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11.A signed statement that the owner /applicant shall be responsible for the conduct
of all employees or independent contractors working on the premises of the
massage establishment and that failure to comply with any local, state, or federal
law, or with the provisions of this chapter may result in the revocation of the
operator's permit.
B. In addition to the requirements in section 5.50.020(A), the following information shall
be provided by any owner /applicant who does not have a State Certificate and owns
five (5) percent or more of the massage establishment:
1. Acceptable proof that the applicant is at least eighteen (18) years of age;
2. Full, true name, and other names used, date of birth and valid and current
driver's license and /or identification card issued by a state or federal
governmental agency or other photographic identification bearing a bona fide
seal by a foreign government;
3. Two (2) photographs to be taken by the Police Department;
4. Current address and all previous residential addresses for eight (8) years
immediately preceding the present address of the applicant;
5. Business, occupation, and employment history for eight (8) years preceding the
date of application;
6. The name and address of any massage business or other like establishment
owned or operated by a person subject to the background check including but
not limited to history, if any, with any agency, board, city, county, territory, or
state and dates of issuance, denial, restriction, revocation, or suspension, and
the reasons therefor of any individual or business permit; and
7. A complete set of fingerprints taken by the Police Department subject to a fee to
cover actual costs to determine whether the applicant has any of the following:
a. Convictions for any crime involving conduct which requires registration
under California Penal Code section 290 (Sex Offender Registration Act);
b. Convictions of violations of California Penal Code sections 2661
(pandering), 315 (keeping or residing in house of ill- fame), 316 (keeping
disorderly house), 318 (prevailing upon person to visit place for gambling
or prostitution), 647(b) (prostitution), 653.23 (supervision of prostitute);
c. Convictions of any felony offense involving the sale of a controlled
substance specified in section 1104, 11055, 11056, 11057, or 11058 of
the Health and Safety Code;
d. Convictions of crimes designated in Government Code section 51032
(massage — grounds for denial of license), or any crime involving
dishonesty, fraud, deceit, violence or moral turpitude;
e. Injunctions for nuisances under Penal Code section 11225 — 11235 (red
light abatement law);
f. Convictions in any other state of any offense which, if committed or
attempted in this state, would have been punishable as one or more of the
referenced offenses of this subdivision;
g. Convictions for conspiracy or attempt to commit any such offense
described in subsections a -f of this subpart.
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C. The Chief of Police or authorized representative shall have up to sixty (60) days
after the submission of all required information to complete the investigation. The sixty
(60) day period may be extended for up to thirty (30) additional days, if necessary, to
complete the investigation. Upon completion of the investigation, an operator's permit
may be issued if the requirements under section 5.50.025 are satisfied.
5.50.025 Operator's Permit Issuance and Denial.
A. The Police Department may issue an operator's permit to a Certified Massage
Business that demonstrates all of the following:
1. The applicant has submitted an application in compliance with section 5.50.020;
2. That the operation, as proposed by the applicant, if permitted, complies with all
applicable laws, including but not limited to, the City's building, zoning, business
license, and health regulations;
3. The massage establishment employs or uses only Certified Massage
Technicians to perform massage whose certifications are valid and current and
that owners of the State Certificates are the same persons to whom CAMTC
issued valid and current identification cards;
4. That the applicant has not made a material misrepresentation in the application
or with respect to any other document or information required by the City with
respect to the application; and
5. That the background check for any applicant/owner, if authorized by this chapter,
shows that such person:
a. Has not been required to register under the provisions of section 290 of
the California Penal Code;
b. Has not had a conviction in a court of competent jurisdiction within eight
(8) years preceding the application for any of the crimes identified in
section 5.50.020(B)(7);
c. Has not had an individual or business permit or license with any agency,
board, city, county, territory, or state denied, revoked, restricted, or
suspended within the last eight (8) years; and
d. Has not been subject to an injunction for nuisance under Penal Code
section 11225 — 11235 within the last eight (8) years.
B. The Police Department may deny an application for an operator's permit for any of
the following reasons:
1. The applicant made a material misstatement or omission in the application or in a
previous application. If the Police Department finds substantial evidence that an
application contains a knowing or intentional material misstatement or omission,
the Police Department shall deny the application;
2. The applicant violated any provision of this chapter and the permit was previously
suspended or revoked for any violation of this chapter;
3. The applicant violated any provision of this chapter on more than two (2)
occasions provided that the applicant received timely notice of each violation;
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4. The applicant has been convicted of or pled guilty or no contest to any offense
involving the use of force or violence upon another person, pandering,
solicitation, or prostitution;
5. The applicant was convicted of, or pled guilty or no contest to a violation of Penal
Code section 415 as a result of an arrest for violation of Penal Code section
647(b);
6. The applicant has previously held a massage establishment license, massage
practitioner permit or similar permit or license that the City of Newport Beach, the
state, or any other public agency has suspended or revoked or that the permittee
surrendered while under investigation or being prosecuted by a government
entity in a civil, administrative, or criminal proceeding for a violation of local, state
or federal law; or
7. The applicant, any business owned or managed by the applicant while the
applicant owned or managed the business, the applicant's current employer, or
the applicant's former employer during the applicant's employment is or was a
named party subject to a permanent injunction against the conducting or
maintaining of a nuisance under Cal. Penal Code sections 11225 through 11235,
or Cal. Health & Safety Code section 11570 et seq., or equivalent offenses under
the laws of another jurisdiction.
5.50.030 Requirements of Operation.
A. Facilities.
1. Structure. Massage shall be carried on in a structure which is located in a zoning
district which permits such use. When a new massage establishment is
constructed, three (3) sets of plans shall be submitted to the City and the County
Health Care Agency for approval and shall be accompanied by the appropriate
plan check fee.
2. Signs. Each operator shall post and maintain, adjacent to the main entrance and
the front of the business, a readable sign identifying the premises as a massage
establishment. The sign and the front of the business shall not be illuminated by
strobe or flashing lights. Each operator and /or on duty manager shall display the
operator's permit in a conspicuous public place in the lobby of the massage
establishment. Each Certified Massage Technician shall display his or her State
Certificate in a conspicuous public place and have his or her identification card in
his or her possession while providing massage services for compensation. The
hours of operation must be posted in the front window and clearly visible from the
outside. The operator and /or on duty manager must also post, on a daily basis in
a conspicuous public place in the lobby, the name of the operator and /or on duty
manager as well as any employees or independent contractors providing
massage services.
3. Services List. Each operator shall post and maintain a list of services available
and the cost of such services in a conspicuous public place within the premises.
No operator or responsible managing employee shall permit any service other
than those posted.
4. Lighting. Each operator shall provide in each room where massage is given
sufficient lighting and ventilation that complies with the Uniform Building Code.
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The lighting in each massage room shall be at least one sixty (60) watt white light
bulb and shall be activated at all times while the patron is in such room or
enclosure. No strobe flashing lights shall be used. No colored lights shall be
used nor shall any coverings be used which change the color of the primary light
source.
5. Bath Facilities. A minimum of one (1) toilet and one (1) separate wash basin
shall be provided for patrons in each massage establishment, which basin shall
provide soap or detergent and hot running water at all times and shall be located
within close proximity to the area devoted to the performing of massage services.
A permanently installed soap dispenser, filled with soap, and a single service
towel dispenser shall be provided at the restroom hand wash sink. No bar soap
can be used. A trash receptacle shall be provided in each toilet room. Showers
may be provided at the operator's option.
6. Separate Rooms. If male and female patrons are to be treated simultaneously at
the same massage establishment, separate massage rooms shall be provided
for male and female patrons. This subsection (A)(6) shall not apply if the
establishment is operated as an accessory use within, and as part of, spa
services offered in a hotel as authorized under Title 20 of the Newport Beach
Municipal Code.
7. Maintenance. All facilities for the massage establishment must be in good repair
and shall be thoroughly cleaned and sanitized each day the business is in
operation. All walls, floors and ceilings of each restroom and shower area shall
be made smooth and easily cleanable. No carpeting shall be installed in any of
these areas.
8. Massage Table. A massage table shall be provided in each massage room and
the massage shall be performed on this massage table. The tables should have
a minimum height of eighteen (18) inches. Two (2) inch thick foam pads with a
maximum width of four (4) feet may be used on a massage table and must be
covered with durable, washable plastic or other waterproof material. Beds, floor
mattresses and waterbeds are not permitted on the premises.
B. Operations.
1. General Conditions. All massage establishments and individuals providing
massage for compensation shall comply with the following conditions:
a. No person shall massage the genitals or anal region of any patron nor
shall an operator or manager of a massage establishment allow or permit
such massage. In addition, no person shall provide massage of female
breasts without the written consent of the person receiving the massage
and a referral from a licensed California health care provider nor shall an
operator or manager of a massage establishment allow or permit such
massage.
b. No person shall, while performing any task or service associated with the
massage establishment, be present in any room with a patron unless the
patron's genitalia and in the case of a female, her breast(s), are fully
covered.
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c. No person shall massage any patron unless the patron's genitalia, and in
the case of a female, her breast(s), are fully covered.
2. Equipment. Each operator and /or on duty manager shall provide and maintain
on the premises adequate equipment for disinfecting and sterilizing instruments
used in massage.
3. Linen. Common use of towels or linen shall not be permitted. Towels and linen
shall be laundered or changed promptly after each use. Separate enclosed
cabinets shall be provided for the storage of clean and soiled linen and shall be
plainly marked "clean linen" and "soiled linen" and shall have doors or covers.
4. Living Prohibited. No person or persons shall be allowed to live inside the
massage establishment at any time. All living quarters shall be separate from the
massage establishment. No food of any kind shall be prepared for sale or sold in
the establishment unless an appropriate food vending permit is granted by the
County of Orange.
5. Alcoholic Beverages /Drugs. No person shall enter, be in, or remain in, any part
of a massage establishment licensed under this chapter while in possession of,
consuming, using or under the influence of, any alcoholic beverage or controlled
substance. The owner, operator and manager shall be responsible to ensure
that no such person shall enter or remain upon the massage establishment.
Service of alcoholic beverages shall not be permitted.
6. Recordings. No electrical, mechanical or artificial device shall be used by the
operator or any employee of the massage establishment for audio and /or video
recording or for monitoring the performance of a massage, or the conversation or
other sounds in the massage rooms without the knowledge or consent of the
patron.
7. Roster. The owner, operator, or on duty manager of the massage establishment
shall keep a complete and current list of the names and residence addresses of
all massage technicians 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 and /or on the premises and be available for inspection by
officials charged with enforcement of this chapter.
8. Coverings. Each massage establishment shall provide to all patrons clean,
sanitary and opaque coverings capable of covering the patrons' specified
anatomical areas, including the genital area, anus and female breast(s). No
shared use of such coverings shall be permitted and re -use is prohibited unless
adequately cleaned.
9. Records. Every person operating a massage establishment shall keep a record
of the dates and hours of each treatment or service, the name and address of the
patron, the name of technician administering such service, and a description of
the treatment or service rendered. A short medical history form shall be
completed by the operator to determine if the patron has any communicable
diseases, areas of pain, high blood pressure or any physical condition which may
be adversely affected by massage. These records shall be prepared prior to
administering any massage or treatment and shall be retained for a period of
twenty -four (24) months after such treatment or service. These records shall be
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open to inspection upon demand only by officials charged with enforcement of
this chapter and for no other purpose. The Police Department shall periodically
inspect the records to ensure compliance with this section. Such records shall
be kept on the premises of the massage establishment for a period of two years.
The information furnished or secured as a result of any such records should be
used only to ensure and enforce compliance with this chapter, or any other
applicable State or Federal laws, and shall remain confidential. Any
unauthorized disclosure or use of such information by any officer or employee of
the City of Newport Beach shall constitute a misdemeanor.
10. Hours of Operation. The owner must advise the City of the business hours and
any changes in hours, in writing, at the time of the application for an operator's
permit. No massage establishment shall be open and no massage shall be
provided between the hours of ten p.m. (10:00 p.m.) and eight a.m. (8:00 a.m.).
A massage begun any time before ten p.m. (10:00 p.m.) must nevertheless
terminate at ten p.m. (10:00 p.m.). All customers, patrons and visitors shall be
excluded from the massage establishment during these hours and be advised of
these hours. The hours of operation must be displayed in a conspicuous public
place in the lobby within the massage establishment and in the front window
clearly visible from the outside.
11. Dress Code. No employee or independent contractor of a massage
establishment or any other person engaged in the practice of massage for
compensation shall dress in attire that is transparent or see - through or
substantially exposes the person's undergarments. In addition, no employee or
independent contractor of a massage establishment or any other person
engaged in the practice of massage for compensation shall dress in a manner
that exposes the person's breasts, buttocks, or genitals or in a manner that
constitutes a violation of section 314 of the California Penal Code.
12. Advertising. No massage establishment granted an operator's permit under this
chapter shall place, publish or distribute or cause to be placed, published or
distributed any advertising matter that depicts any portion of the human body that
would reasonably suggest to prospective customers or clients that any service is
available other than those services described in this chapter, nor shall any
massage establishment employ language in the text of such advertising that
would reasonably suggest to a prospective patron that any service is available
other than those services authorized by this chapter.
13. Disabilities. All massage establishments must comply with all Federal and State
laws and regulations for disabled customers.
14. Doors. All interior doors of a massage establishment shall be unlocked during
business hours. All massage establishments with more than one employee shall
keep front exterior doors unlocked during business hours. No massage may be
given within any cubicle, room, booth or any area within a massage
establishment which is fitted with a door capable of being locked unless the only
door is an exterior door.
15.Access. No person(s) other than the operator, manager, employees, and
customers will be allowed beyond the front lobby, located directly inside the front
door entrance during hours of operation. Any other person(s) found beyond the
Page 111
3 -14
first interior door leading to the inside of the business including, but not limited to,
hallways, massage rooms, reception /business offices or lounge area will be in
violation of this section.
16. Discrimination. No massage establishment may discriminate or exclude patrons
on the basis of a protected class such as race, color, national origin, ancestry,
religion, physical or mental disability, medical condition, marital status, veteran
status, sex, sexual orientation, age or any other basis protected by applicable
Federal or State laws and regulations
5.50.035 Changes of Business.
A. Every massage establishment operator shall report to the Police Department by way
of written notification 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
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 of the premises may be approved by the Chief of Police provided
there is compliance with all applicable regulations of the City.
B. No operator's permit may be sold, transferred or assigned by a permit holder, 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 permit holder 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 operator's permit, and in such case, the permit, upon
notification to the Chief of Police, shall be placed in the name of the surviving partners.
An operator's 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 an operator's 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.
5.50.040 Operator's Permit Exemptions.
A. The provisions of this chapter shall not apply to the following classes of persons or
businesses while engaged in the performance of their duties:
1. Physicians, surgeons, chiropractors, osteopaths, nurses or any physical
therapists duly licensed to practice their respective professions in the State of
California and working within the scope of their licenses.
2. Barbers, cosmetologists, estheticians, and manicurists who are duly licensed
under the laws of the State of California while engaging in practices within the
scope of their licenses, except that this provision shall apply solely to the
massaging of the neck, face, hands and feet, and /or scalp of the customers, and
this exception shall not apply to full body work or full body massage.
Page 112
3 -15
3. Hospitals, nursing homes, sanatoriums, or other health facilities duly licensed by
the State of California.
4. Accredited junior colleges and colleges or universities whose coaches and
trainers are acting within the scope of their employment.
5. Trainers of amateur, semi - professional or professional athletes or athletic teams
while engaging in their training responsibilities for and with athletes and trainers
working in conjunction with a specific athletic event such as an outdoor road or
bike race.
5.50.045 Inspection by City Officials and Notices of Violation.
A. The investigating officials of the City shall have the right to enter the premises during
regular business hours prior to the issuance of a permit and subsequently for the
purpose of making reasonable inspections to enforce compliance with this chapter and
with building, fire, electrical, plumbing, and /or health and safety regulations. In the
event an operator's permit has been issued, it may be revoked or suspended in the
manner set forth in this chapter.
B. Whenever City officials make an inspection of a massage establishment and find
that any provision of this chapter has been violated, he or she shall give notice of such
violation by means of an inspection report, administrative citation, or other written
notice. In any such notification, the investigating person shall set forth the specific
violation or violations found and shall notify the holder of the operator's permit that
failure to comply with any notice issued in accordance with the provisions of this chapter
may result in the revocation or suspension of the permit.
C. The permit holder shall take immediate action to correct violations, and City officials
may re- inspect the business for compliance.
D. The permit holder may be issued a warning that any future violation of this chapter
may result in suspension or revocation of the permit or the City officials may establish a
specific and reasonable period of time for the correction of the violation(s). No time to
correct need be given for health and safety violations or violations of criminal law.
5.50.050 Operator's Permit Expiration and Renewal.
A. An operator's permit shall be for a period of three years provided that the permit
holder continues to meet the requirements set out in this chapter.
B. Applications for the next ensuing operator's permit shall be filed with the Chief of
Police before the expiration of the existing permit. Temporary permits will not be issued
and renewal applications must be filed no later than sixty (60) days prior to the
expiration of the permit to prevent a lapse.
C. Renewal applications shall require such information as may be required by the Chief
of Police to update the information contained in the original application. The applicant
shall accompany the application for renewal with the appropriate filing fee established
by resolution of the City Council.
Page 113
3 -16
5.50.055 Suspension, Revocation, Denial and Appeal.
A. Revocation and Suspension of Operator's Permit. The Chief of Police may refuse to
renew an operator's permit or may revoke or suspend an existing operator's permit on
any of the following grounds:
1. The permit holder has made a material misrepresentation on the application for
an operator's permit or renewal;
2. The permit holder has engaged in conduct or operated a massage establishment
in a manner which violates any of the provisions of this chapter, any conditions of
the operator's permit, or any of the laws which would have been grounds for
denial of the permit;
3. The permit holder employs or uses any person who is not a Certified Massage
Technician to perform massage services;
4. Violations of this chapter or of California Business and Professions Code section
4600 et seq. have been committed by the massage establishment or by anyone
performing massage services on behalf of the massage establishment; or
5. The permit holder has engaged in fraud, misrepresentation, or false statements
in obtaining or maintaining an operator's permit.
B. If a suspended permit lapses during the suspension period, a new application cannot
be made until the end of the suspension period.
C. The term of suspension shall last no more than sixty (60) days.
D. Notice.
1. When the Chief of Police concludes that grounds for denial, suspension,
revocation or refusal to renew a permit exist, the Chief of Police shall serve the
applicant or permit holder, either personally or by certified mail addressed to the
business or residence address of applicant or permit holder, with a notice of
denial or notice of intent to suspend, revoke or refuse to renew permit. This
notice shall state the reasons for the proposed action, the effective date of the
decision, and the right of the applicant or permit holder to appeal the decision to
the City Manager. The decision will be final if no appeal is filed within the time
permitted.
E. Appeal.
1. The right to appeal to the City Manager shall terminate upon the expiration of
fifteen (15) days from the date of mailing or service of the notice. The notice of
appeal is to be sent to the Police Department of the City of Newport Beach.
2. In the event an appeal is timely filed, the suspension or revocation shall not be
effective until a final decision has been rendered by the City Manager or his or
her designee. If no appeal is filed, the suspension or revocation shall become
effective upon expiration of the period for filing appeals.
Page 114
3 -17
3. The City Manager may preside over the hearing on appeal or, in the alternative,
the City Manager may appoint a hearing officer to conduct the hearing, receive
relevant evidence and to submit to the City Manager findings and
recommendations to be considered by the City Manager. The City Manager shall
render his or her decision within forty -five (45) days from the date of the hearing
or, in the event that a hearing officer has been appointed, within forty -five (45)
days from the date on which the City Manager receives the findings and
recommendations of the hearing officer. The decision of the City Manager shall
be final. The applicant shall be entitled to notice of the basis for the proposed
action, a copy of the documents upon which the decision was based and the
opportunity to present contrary evidence at the hearing.
4. Notice of the date, time and place of the hearing shall be mailed at least ten (10)
days prior to the date of the hearing, by U.S. Mail, with proof of service attached,
addressed to the address listed on the operator's permit application or the
address given in the notice of appeal, as the case may be.
5. The following rules of evidence shall apply:
a. Oral evidence shall be taken only under oath or affirmation. The hearing
officer shall have authority to administer oaths, and to receive and rule on
admissibility of evidence.
b. Each party shall have the right to call and examine witnesses, to introduce
exhibits, and to cross - examine opposing witnesses who have testified
under direct examination. The hearing officer may call and examine any
witness.
c. Technical rules relating to evidence and witnesses shall not apply to
hearings provided for in this chapter. Any relevant evidence may be
admitted if it is material and is evidence customarily relied upon by
responsible persons in the conduct of their affairs regardless of the
existence of any common law or statutory rule which might make
admission of such evidence improper over objection in civil actions.
Hearsay testimony may be admissible and used for the purpose of
supplementing or explaining any evidence given in direct examination, but
shall not be sufficient in itself to support a finding unless such testimony
would be admissible over objection in civil actions. The rules of privilege
shall be applicable to the extent they are now, or are hereafter permitted in
civil actions. Irrelevant, collateral, undue, and repetitious testimony shall
be excluded.
6. No permit granted herein shall confer any vested right to any person or business
for more than the permit period.
5.50.060 Fees.
The City Council shall establish by resolution, and from time to time may amend, the
fees for the administration of this chapter. Fees required by this chapter shall be in
addition to any required under any other chapter of this Code.
5.50.065 Violation and Penalty.
Page 115
MU
A. Violations of this chapter may be enforced pursuant to the provisions of Chapter
1.04 of the Newport Beach Municipal Code.
B. Any massage establishment operated, conducted or maintained contrary to the
provisions of this chapter shall be, and the same is declared to be, unlawful and a public
nuisance, and the City may, in addition to or in lieu of prosecuting a criminal action
hereunder, commence an action or actions, proceeding or proceedings, for the
abatement, removal and enjoinment thereof, in the manner provided by law, and shall
take such other steps and shall apply to such court or courts as may have jurisdiction to
grant such relief as will abate or remove such massage establishments and restrain and
enjoin any person from operating, conducting or maintaining a massage establishment
contrary to the provisions of this chapter.
5.50.070 Severability.
If any section, subsection, sentence, clause or phrase of this chapter is for any reason
held to be invalid or unconstitutional by a decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this chapter. The
City Council hereby declares that it would have passed the ordinance codified in this
chapter, and each and every section, subsection, sentence, clause or phrase not
declared invalid or unconstitutional without regard to whether any portion of this chapter
would be subsequently declared invalid or unconstitutional.
SECTION 2: Chapter 5.64 of the Newport Beach Municipal Code is hereby
deleted in its entirety.
SECTION 3: The recitals provided in this ordinance are true and correct and are
incorporated into the substantive portion of this ordinance.
SECTION 4: If any section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this ordinance. The
City Council hereby declares that it would have passed this ordinance and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses and phrases be declared
unconstitutional.
SECTION 5: The City Council finds the approval of this ordinance is not subject
to the California Environmental Quality Act ( "CEQA ") 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, California Code of Regulations, Title 14, Chapter 3,
because it has no potential for resulting in physical change to the environment, directly
or indirectly. Alternatively, the City Council finds the approval of this ordinance is not a
project under CEQA Regulation section 15061(b)(3) because it has no potential for
causing a significant effect on the environment.
Page 116
3 -19
SECTION 6: Except as expressly modified in this ordinance, all other sections,
subsections, terms, clauses and phrases set forth in the Newport Beach Municipal Code
shall remain unchanged and shall be in full force and effect.
SECTION 7: The Mayor shall sign and the City Clerk shall attest to the passage
of this ordinance. The City Clerk shall cause the ordinance to be published pursuant to
City Charter section 414, and it shall be effective thirty (30) days after its adoption.
This Ordinance was introduced at a regular meeting of the City Council of the
City of Newport Beach held on the day of 2015, and adopted on the
day of , 2015, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES, COUNCILMEMBERS,
ABSENT COUNCILMEMBERS
MAYO
ATTEST:
Edward D. Selich
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
AA" C. HARP, CITY RNEY
Page 117
3 -20
ATTACHMENT B
Chapter 5.50
MASSAGE ESTABLISHMENTS*
Sections:
5.50.005 Findings and Purpose.
5.50.010 _Definitions.
5.50.015 State Certification and Operator's Permit Required.
5.50.020 Application for Operator's Permit.
5.50.025 _Operator's Permit Issuance and Denial.
5.50.030 Massage Technician Permit.
5.50.035 Annii..n +inn fnr Massage Teehnininn Per.ni+
5.50.040 Massage Teehnin n Permit inn„nnnn and Denial
5.501045 Off_oremises Massage Per.,,i+
q 5)0 959 Requirements of Operation.
5.50.035 055 Changes of Business.
5.50.040 Operator's Permit Exemptions.
5.50.045 Inspection by City Officialsf.5n no wG FmpeT
c 50 065 C..emptinn. Existing Pe ff.ittees
5.50.070 Tr-ansfe; and NoticesPuratien of Violation ?erMits.
5.50.050 Operator's Permit Expiration and Renewal.
5.50.055 5. 55:975 Suspension, Revocation, Denial and Appeal.
5.50.060 Fees.
5.506065 G99 Violation and Penalty.
5.50.070 965 Severability.
, , , ,
32 86 19 86 30 47 An 49 14 QQ 24 QQ 25 89 38 nn 7
5.50.005 Findings and Purpose.
The City Council finds and declares as follows:
-ter r_iiir�rserr.►�err.�:�m ar����ev�s�iTrrsnm�
rare- marar.str� r_r
-
- -
Q==A. It is the purpose and intent of this chapter to provide for the orderly regulation of
offices and establishments providing massage therapy services, and to prevent and
discourage the misuse of massage therapy as a front for prostitution and related
3 -21
activities in violation of state law, all in the interest of the public health, safety, and
welfare, by providing certain minimum building, sanitation, and operation standards for
such businesses, and by requiring certain minimum qualifications for the operators and
practitioners of such businesses. It is the further intent of this chapter to streamline local
massage therapy permitting procedures, while still facilitating and advancing the ethical
practice of massage therapy, by relying upon the uniform statewide regulations enacted
by the Legislature in 2008, 2011 and 2014 as Business and Professions Code sections
4600 et seq., and by restricting the commercial practice of massage in the city to those
Persons duly certified to practice by the California Massage Therapy Council formed
pursuant to those statutesTh^ "^ is ^^n_ei4 . 4y for -asts of nrnsf t --tong ;;Rd nthpr ,Rla. A4,-i
B. The restrictions and requirements contained in this chapter reduce the burdens on
the Police Department and permit the deployment of the police personnel such that
more serious crimes may be prevented and FneFe fmpo Rant laws eRfemed.
CF. The regulations and restrictions contained in this chapter tend to discourage
massage establishments from degenerating into houses of prostitution and the means
utilized in this chapter bear a reasonable and rational relationship to the goals sought to
be achieved. (Ord. 96 27 R 1 (pa't` 1996`
5.50.010 Definitions.
Unless the context of the particular provision of the context otherwise requires, the
definitions and provisions contained in this section shall govern the construction,
meaning, and application of words and phrases used in this chapter.
"Approved School of Massage" means any school or institution of learning that is
recognized as an 'approved school" pursuant to Business and Professions Code
Division 2, Chapter 10.5, as it may be amended.
"California Massage Therapy Council" means the massage therapy organization formed
pursuant to California Business and Professions Code section 4600, and following, as
amended, and referred to as CAMTC herein.
"Certified Massage Business" means any business where the only persons employed or
used by that business to provide massages services have current and valid State
Certifications.
"Certified Massage Technician" means any person holding a current and valid State
Certificate issued by the CAMTC pursuant to California Business and Professions Code
Pa e 2
3 -22
section 4600, and following, as amended, whether as a massage practitioner or
massage therapist, as defined therein.
"Certified Sole Proprietorship" means any massage business where the owner is the
only person employed or used by that business to provide massage services and the
owner has a current and valid unconditional State Certification.
"Chief of Police" means the Chief of Police of the City of Newport Beach, or his /her
designated representative.
"City" means the City of Newport Beach.
"City Council" means the City Council of the City of Newport Beach.
"City Manager means the City Manager of the City of Newport Beach, or his /her
designated representative.
"Conviction," 'convicted" means a plea or verdict of guilty or a conviction following a
plea of nolo contendere.
"Customer area" means areas open to customers of the establishment.
"Manager" means 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 with the same liabilities and responsibilities. Evidence of management
includes, but is not limited to, evidence that the individual has power to direct or hire and
dismiss employees, control hours of operation, create policy or rules or purchase
supplies. A manager may also be an owner. ^ manageF FAList meet the standaFds and
teGhRiGiaR permit-.
"Massage" means any method of treating the external parts of the body for remedial,
hygienic, relaxation or any other reason or purpose, whether by means of pressure on,
friction against or stroking, kneading, tapping, pounding, vibrating, rubbing or other
manner of touching external parts of the body with the hands, or with the aid of any
mechanical or electrical apparatus or appliance with or without supplementary aids such
as rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment or other similar
preparations commonly used in this practice.
"Massage establishment" means anv business at a fixed location where massaae is
performed for compensation, excluding those locations where massage is only provided
on an out -call basis.
Page 13
3 -23
IYr�GTSST.'►�T.TJ. .
Operator" or and a I I own e rs of
�C.... C.
f" thatmea Rs all II uhe hA-Ve n rshi^ interest in the Massage
establishment and are responsible for its day -to -day operations including any of the
following persons: the managing responsible officer /employee, a general partner, a
limited partner, a shareholder, a sole proprietor, or any person who has a five (5)
percent or greater ownership interest in a massage establishment whether as an
individual, corporate entity, limited partner, shareholder or sole proprietor.
"Operator's Permit" means a permit issued bytes the Police Department upon
submission of satisfactory evidence aspefm# required that a massage business or sole
proprietorship employs or uses only certified massage therapists or practitioners
possessing valid and current State Certifications and has satisfied all other
requirements pursuant to the provisions of this chapter to eperate ^
massage ncMhlishr.mnn4
"Person" means any individual, or corporation, partnership, association or other group
or combination of individuals acting as an entity.
'Police Department' means the Police Department of the City of Newport Beach.
"State Certification" or "State Certificate" means a valid and current certification properly
issued by CAMTC pursuant to California Business & Professions Code section 4600,
and following, as amended.
1@110@1@111111 Ifillip1j. film
..
For purposes of this chapter the term "employee" shall include independent contractors.
.. ._ .._ .. _ .. ..
1 5.50.015 State Certification and Operator's Permit Required.
-.• M
3 -24
On or after April 15, 2015, it shall be unlawful for any individual to practice massage for
compensation within the City unless that individual is a Certified Massage Technician
and further, it shall be unlawful for any massage establishment within the City to provide
massage services or allow massage services to be performed at the massage
establishment unless all individuals performing massage at the massage establishment
are Certified Massage Technicians.
In addition, it shall be unlawful for any person, association, partnership, company or
corporation togo^- ^peFser^r�4 a4 operate a massage establishment within the City without
first obtaining an operator's permit pursuant to SeGti ns 5.50.020 and 9 cn nOC F this
chapter, securing the necessary business license as required by this Code, and
complying with Title 20 of this Code. (04 96 O7 a 1 (paFt ), 1996: nra nn 54 § 1 (paFt
1 o94 • Ord DOG R 1 (part) 1992\
5.50.020 Application for Operator's Permit.
A. Any person desiring an operator's permit for a massage establishment shall file a
written application on the required form with the Police Department Civilian
Investigator''^mmunity c^ ^°^^^ Offiee who shall conduct an investigation._ The
application shall be accompanied by the appropriate filing fee established by resolution
of the City Council. _The application shall be 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 an operator's
permit does not authorize operation of a massage establishment unless and until such
permit has been properly issued. g-an . The application shall contain or be
accompanied by the following information in writing:
1_4—.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 provisions of this
subsection pertaining to corporations shall apply to that corporation. - 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_2—.The full and true legal preeise name under which the massage establishment
willis-te be conducted.
Page 15
3 -25
3_3-.—The complete address and all telephone numbers of the massage
establishment.
The full and true legal name and mailing address of the owner or owners
4
A--A-nnmnlete nt rnf of the names Rd si deRee addresses of theatl
prepesed massage' ^ ^h^i^i ^^° and ^ ^I^"^^° O^ the massage establishment.
5. A copy of a State Certificate issued to each person who will be providing
massage services at @ad the n°^.° @Rd • °ice' °n^° @GIGI °°°^° ^f the ,
massage establishment.
6. 5-.-A copy of a photographic government- issued identification card of the owner or
owners of the massage establishment.
7. A statement that th2__d8GGFiPtiGR Gf aRy ether business will only employ or use
persons with a State Certificate to provide massage services, and that failure to
comply may result in the suspension or revocation of the operator's permit.
8. A statement that
,uhinh n,., ^ ^,, ^. ^.. ^.^fn,d by the applicant will provide written notification of any
changes to the original application within 10 days of the change occurring.
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9_8-.-Authorization for the City, 46 ageRtS and employees to investigate the
truth,;Rpk WPF fiP.RfiGRof the information contained in the application.
10.10A statement i^ WF!ti^^ and dRtp' by the applicant that he or she certifies
under penalty of perjury that all information contained in the application is true
and correct.
A sianed statement that the owner / aoolicant shall be resoonsible for
cc - • • M • • • • - • • -
re ma@ • • . --
• '-
+W° • - - - -
federal E)peFatE)F's desigRated maRager(s) must pass a writteR test deal;pg with anV local,
state, or or provisions . chapter
result in the revocationte eRSWFe a GOmplete URdeFsta of operator's
•
eligible te take anotheF examination until thiFty (30) days afteF the previDUS
.. appliGaRt WIRG fails te pass UPGR a 68GORd attempt, shall R9t
SHStaiRed
• - - -. -. - - - - - - N - .... ._. - -. .. •.
OWN
Page 17
3 -27
B. In addition to the requirements in section 5.50.020(A), the following information shall
be provided by any owner /applicant who does not have a State Certificate and owns
five (5) percent or more of the massage establishment:
2. Acceptable proof that the applicant is at least eighteen (181 vears of ape:
3. Full, true name, and other names used, date of birth and valid and current
driver's license and /or identification card issued by a state or federal
governmental agency or other photographic identification bearing a bona fide
seal by a foreign government;
4. Two (2) photographs to be taken by the Police Department;
5. Current address and all previous residential addresses for eight (8) years
immediately preceding the present address of the applicant:
6. Business, occupation, and employment history for eight (8) years preceding the
date of application:
7. The name and address of any massage business or other like establishment
owned or operated by a person subject to the background check including but
not limited to history, if any, with any agency, board, city, county, territory, or
state and dates of issuance, denial, restriction, revocation, or suspension, and
the reasons therefor of any individual or business permit: and
8. A complete set of fingerprints taken by the Police Department subiect to a fee to
cover actual costs to determine whether the applicant has any of the following:
a. Convictions for any crime involving conduct which requires registration
under California Penal Code section 290 (Sex Offender Registration Act);
b. Convictions of violations of California Penal Code sections 266i
(pandering), 315 (keeping or residing in house of ill- fame), 316 (keeping
disorderly house). 318 (prevailing upon person to visit place for gambling
or prostitution), 647(b) (prostitution), 653.23 (supervision of prostitute):
c. Convictions of any felony offense involving the sale of a controlled
substance specified in section 1104, 11055, 11056, 11057, or 11058 of
the Health and Safety Code;
d. Convictions of crimes designated in Government Code section 51032
(massage — grounds for denial of license), or any crime involving
dishonesty, fraud, deceit, violence or moral turpitude:
e. Injunctions for nuisances under Penal Code section 11225 — 11235 (red
light abatement law);
f. Convictions in any other state of any offense which, if committed or
attempted in this state, would have been punishable s„ ^ti peRRi+ sheJd
be as one or more of the referenced offenses of this subdivision:
g. Convictions for conspiracy or attempt to commit any such offense
described in subsections a -f of this subpart.
C. rid. The Chief of Police or authorized representative shall have up toshall-
within sixty (60) days after the submission of all required information to complete the
Investigation. of ^+ of nR pileatiOR ..aa'„ ally OF de the
The sixty (60) day period may be extended for up to thirty (30) additional
days, if necessary, to complete the investigation. Upon completion of the investigation,
•..
9W.
an operator's permit may be issued if the requirements under section 5.50.025 are
satisfied.The Ghief of PEAGe shall issue nh . Mi+ as tee Rless he/sh.. Makes
5.50.025 Operator's Permit Issuance and Denial.
A_
4. The Police Department may issue an operator's permit to a Certified Massage
Business that demonstrates all of the following:
1. The applicant has submitted an application in compliance with section 5.50.020;
2. That the operation, as proposed by the applicant, if permitted, complies with all
applicable laws, including but not limited to, the City's building, zoning, business
license, and health regulations;
3. The aR Rdiyid al eF of the effiGers r .di Fe GtOFS of the G ratieR if the
massage establishment employs or
uses only Certified Massage Technicians to perform massage whose
certifications are valid and current and that owners of the State Certificates are
the same persons to whom CAMTC issued valid and current identification cards;
4. That the applicant has not made a material misrepresentation in the application
or with respect to any other document or information required by the City with
respect to the application; and
5. That the background check for any applicant/owner, if authorized by this chapter,
shows that such person:
a. Has not been required to register under the provisions of section 290 of
the California Penal Code;
b. Has not had a conviction in a court of competent iurisdiction ; #gas- within
eight years preceding the date of the application for any of the crimes
identified in section 5.50.020(6)(7);:
c. Has not had an individual or business permit or license with any agency,
board, city, county, territory, or state denied, revoked, restricted, or
suspended within the last eight (8) years; and
d. Has not been subiect to an injunction for nuisance under Penal Code
section 11225 — 11235 within the last eight (8) years.
B. The Police Department may deny an application for an operator's permit for any of
the following reasons:
1. The applicant made a material misstatement or omission in the application or in a
previous application. If the Police Department finds substantial evidence that an
application contains a knowing or intentional material misstatement or omission,
the Police Department shall deny the application;
2. The applicant violated any provision of this chapter and the permit was previously
suspended or revoked for any violation of this chapter;
3. The applicant violated any provision of this chapter on more than two (2)
occasions provided that the applicant received timely notice of each violation;
.. R
3 -29
4. The applicant has been convicted of or pled guilty or no contest to any offense
involving the use of force or violence upon another person, pandering,
solicitation, or prostitution;
5. The applicant was convicted of, or pled guilty or no contest to a violation of Penal
Code section 415 as a result of an arrest for violation of Penal Code section
647(b);
6. The applicant has previously held a massage establishment license, massage
practitioner permit or similar permit or license that the City of Newport Beach, the
state, or any other public agency has suspended or revoked or that the permittee
surrendered while under investigation or being prosecuted by a government
entity in a civil, administrative, or criminal proceeding for a violation of local, state
or federal law; or
The applicant. anv business owned or manaaed by the applicant while the applicant
..
PRIMIN -M 11
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nuisance under Cal. Penal Code sections 11225 through 11235, or
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Page 1 10
3 -30
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Page 1 10
3 -30
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5 50 050Requirements of Operation.
A. Facilities.
1_4—.Structure. Massage shall be carried on in a structure which is located in a
zoning district which permits such use. When a new massage establishment is
constructed, threes sets of plans shall be submitted to the City and the County
Health Care Agency for approval and shall be accompanied by the appropriate
plan check fee.
2_2--.Signs._ Each operator shall post and maintain, adjacent to the main entrance
and the front of the business, a readable sign identifying the premises as a
massage establishment. The sign and the front of the business shall not be
illuminated by strobe or flashing lights._ Each operator and /or on duty manager
shall display the operator's permit in a conspicuous public place in the lobby of
the massage establishment. Each Certified Massage Technician shall display
his or her State Certificate in a conspicuous public place and have his or her
identification card in his or her possession while providina massaae services for
compensation. The hours of operation must be posted in the front window and
clearly visible from the outside. The operator and /or on duty manager must also
post, on a daily basis in a conspicuous public place in the lobby, the name of the
operator and /or on duty manager as well as any employees or independent
contractors providingon - -duty massage servicestPrhn n'RPg.
Page 1 19
3 -39
,,.�s�
N-:':C
..
..
5 50 050Requirements of Operation.
A. Facilities.
1_4—.Structure. Massage shall be carried on in a structure which is located in a
zoning district which permits such use. When a new massage establishment is
constructed, threes sets of plans shall be submitted to the City and the County
Health Care Agency for approval and shall be accompanied by the appropriate
plan check fee.
2_2--.Signs._ Each operator shall post and maintain, adjacent to the main entrance
and the front of the business, a readable sign identifying the premises as a
massage establishment. The sign and the front of the business shall not be
illuminated by strobe or flashing lights._ Each operator and /or on duty manager
shall display the operator's permit in a conspicuous public place in the lobby of
the massage establishment. Each Certified Massage Technician shall display
his or her State Certificate in a conspicuous public place and have his or her
identification card in his or her possession while providina massaae services for
compensation. The hours of operation must be posted in the front window and
clearly visible from the outside. The operator and /or on duty manager must also
post, on a daily basis in a conspicuous public place in the lobby, the name of the
operator and /or on duty manager as well as any employees or independent
contractors providingon - -duty massage servicestPrhn n'RPg.
Page 1 19
3 -39
..
oft
5 50 050Requirements of Operation.
A. Facilities.
1_4—.Structure. Massage shall be carried on in a structure which is located in a
zoning district which permits such use. When a new massage establishment is
constructed, threes sets of plans shall be submitted to the City and the County
Health Care Agency for approval and shall be accompanied by the appropriate
plan check fee.
2_2--.Signs._ Each operator shall post and maintain, adjacent to the main entrance
and the front of the business, a readable sign identifying the premises as a
massage establishment. The sign and the front of the business shall not be
illuminated by strobe or flashing lights._ Each operator and /or on duty manager
shall display the operator's permit in a conspicuous public place in the lobby of
the massage establishment. Each Certified Massage Technician shall display
his or her State Certificate in a conspicuous public place and have his or her
identification card in his or her possession while providina massaae services for
compensation. The hours of operation must be posted in the front window and
clearly visible from the outside. The operator and /or on duty manager must also
post, on a daily basis in a conspicuous public place in the lobby, the name of the
operator and /or on duty manager as well as any employees or independent
contractors providingon - -duty massage servicestPrhn n'RPg.
Page 1 19
3 -39
3_3-.--Services List._ Each operator shall post and maintain a list of services
available and the cost of such services in a conspicuous public place within the
premises. _No operator or responsible managing employee shall permit, and Re
massage technician shall offer or perform, any service other than those posted.
4_4- 1ighting._ Each operator shall provide in each room where massage is given
sufficient lighting and ventilation that complies with the Uniform Building Code.
The lighting in each massage room shall be at least one sixty (60) watt white light
bulb and shall be activated at all times while the patron is in such room or
enclosure. No strobe flashing lights shall be used. No colored lights shall be
used nor shall any coverings be used which change the color of the primary light
source.
5_S —Bath Facilities. _A minimum of one Mtoilet and ones separate wash basin
shall be provided for patrons in each massage establishment, which basin shall
provide soap or detergent and hot running water at all times and shall be located
within close proximity to the area devoted to the performing of massage services.
A permanently installed soap dispenser, filled with soap, and a single service
towel dispenser shall be provided at the restroom hand washhandwash sink. No
bar soap can be used._ A trash receptacle shall be provided in each toilet room.
Showers may be provided at the operator's option.
6_6— Separate Rooms. _If male and female patrons are to be treated simultaneously
at the same massage establishment, separate massage rooms shall be provided
for male and female patrons._ This subsection (A)(6) shall not apply if the
establishment is operated as an accessory use within, and as part of, spa
services offered in a hotel as authorized under Title 20 of the Newport Beach
Municipal Code.
7_7—.Maintenance. All facilities for the massage establishment must be in good
repair and shall be thoroughly cleaned and sanitized each day the business is in
operation. _AII walls, floors and ceilings of each restroom and shower area shall
be made smooth and easily cleanable. _No carpeting shall be installed in any of
these areas.
8_8— Massage Table. A massage table shall be provided in each massage room
and the massage shall be performed on this massage table. The tables should
have a minimum height of eighteen (18) inches. _Twos -inch thick foam pads
with a maximum width of fours feet may be used on a massage table and must
be covered with durable, washable plastic or other waterproof material. _Beds,
floor mattresses and waterbeds are not permitted on the premises.
B. Operations.
1. General Conditions. All massage establishments and individuals providing
massage for compensation shall comply with the following conditions:
Page 120
a, Go
a. No person shall massage the genitals or anal region of any patron nor
shall an operator or manager of a massage establishment allow or permit
such massage. In addition, no person shall provide massage of female
breasts without the written consent of the person receiving the massage
and a referral from a licensed California health care provider nor shall an
operator or manager of a massage establishment allow or permit such
massage.
b. No person shall, while performing any task or service associated with the
massage establishment, be present in any room with a patron unless the
patron's genitalia and in the case of a female, her breast(s), are fully
covered.
c. No person shall massage any patron unless the patron's genitalia, and in
the case of a female, her breast(s), are fully covered.
2_4—.Equipment._ Each operator and /or on duty manager shall provide and maintain
on the premises adequate equipment for disinfecting and sterilizing instruments
used in massage.
All
- to] WIN, 1111011
._
3_-3-Ainen. Common use of towels or linen shall not be permitted. Towels and
linen shall be laundered or changed promptly after each use. Separate enclosed
cabinets shall be provided for the storage of clean and soiled linen and shall be
plainly marked "clean linen" and "soiled linen" and shall have doors or covers.
Page 121
3 -41
■. ..
■_ ■_
All
- to] WIN, 1111011
._
3_-3-Ainen. Common use of towels or linen shall not be permitted. Towels and
linen shall be laundered or changed promptly after each use. Separate enclosed
cabinets shall be provided for the storage of clean and soiled linen and shall be
plainly marked "clean linen" and "soiled linen" and shall have doors or covers.
Page 121
3 -41
OrTgOWN
■_
..
.
- ^a W W i+
All
- to] WIN, 1111011
._
3_-3-Ainen. Common use of towels or linen shall not be permitted. Towels and
linen shall be laundered or changed promptly after each use. Separate enclosed
cabinets shall be provided for the storage of clean and soiled linen and shall be
plainly marked "clean linen" and "soiled linen" and shall have doors or covers.
Page 121
3 -41
4_4— Living Prohibited. No person or persons shall be allowed to live inside the
massage establishment at any time. All living quarters shall be separate from the
massage establishment._ No food of any kind shall be prepared for sale or sold in
the establishment unless an appropriate food vending permit is granted by the
County of Orange.
5_S— Alcoholic Beverages /Drugs._ No person shall enter, be in, or remain in, any
part of a massage establishment licensed under this chapter while in possession
of, consuming, using or under the influence of, any alcoholic beverage or
controlled substance. The owner, operator and manager shall be responsible to
ensure that no such person shall enter or remain upon the massage
establishment. Service of alcoholic beverages shall not be permitted.
6_6—.Recordings._ No electrical, mechanical or artificial device shall be used by the
operator or any employee of the massage establishment for audio and /or video
recording or for monitoring the performance of a massage, or the conversation or
other sounds in the massage rooms without the knowledge or consent of the
patron.
7_7—.-Roster. _The owner, operator, or on duty manager of the massage
establishment shall keep a complete and current list of the names and residence
addresses of all massage technicians 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 and /or on the premises and
be available for inspection by officials charged with enforcement of this chapter.
8_&.-Coverings.- Each massage establishment shall provide to all patrons clean,
sanitary and opaque coverings capable of covering the patrons' specified
anatomical areas, including the genital area, anus and female breast(s). _No
sharedseMnen use of such coverings shall be permitted and re -use is prohibited
unless adequately cleaned.
9_@-.--Records._ Every person operating a massage establishment shall keep a
record of the dates and hours of each treatment or service, the name and
address of the patron, the name of technician administering such service, and a
description of the treatment or service rendered. - A short medical history form
shall be completed by the operator to determine if the patron has any
communicable diseases, areas of pain, high blood pressure or any physical
condition which may be adversely affected by massage. These records shall be
prepared prior to administering any massage or treatment and shall be retained
for a period of twenty -four (24) months after such treatment or service. These
records shall be open to inspection upon demand only by officials charged with
enforcement of this chapter and for no other purpose. _The Police Department
shall periodically inspect the records to ensure compliance with this section.
Such records shall be kept on the premises of the massage establishment for a
Page 122
3 -42
period of two years. The information furnished or secured as a result of any such
records should be used only to ensure and enforce compliance with this chapter,
or any other applicable State or Federal laws and shall remain confidential._ Any
unauthorized disclosure or use of such information by any officer or employee of
the City of Newport Beach shall constitute a misdemeanor.
10.40-.Hours of Operation. _The owner must advise the City of the business hours
and any changes in hours, in writing, at the time of the application for an
operator'sa permit_ of the husiness h0IAFs and aRy GhaRge° '^ heLIFS. No pepsea
shall eperate -a- massage establishment shall be open and noon administer a
massage shall be provided- Adr,ini�+nr
massage ^Rt to an Off PFemises massage peFMit between the hours of ten
p.m. (10:00 p.m.) and eight a.m. (8:00 a.m.). A massage begun any time before
ten p.m. (10:00 p.m.) must nevertheless terminate at ten p.m. (10:00 p.m.). All
customers, patrons and visitors shall be excluded from the massage
establishment during these hours and be advised of these hours. The hours of
operation must be displayed in a conspicuous public place in the lobby within the
massage establishment and in the front window clearly visible from the outside.
11. Dress Code. No employee or independent contractor of a massage
establishment or any other person engaged in the practice of massage for
compensation shall dress in attire that is transparent or see - through or
substantially exposes the person's undergarments. In addition, no employee or
independent contractor of a massage establishment or any other person
engaged in the practice of massage for compensation shall dress in a manner
that exposes the person's breasts, buttocks, or genitals or in a manner that
constitutes a violation of section 314 of the California Penal Code.
12.44- Advertising. No massage establishment granted an operator's a permit under
this chapter shall place, publish or distribute or cause to be placed, published or
distributed any advertising matter that depicts any portion of the human body that
would reasonably suggest to prospective customers or clients that any service is
available other than those services described in this chapter, nor shall any
massage establishment employ language in the text of such advertising that
would reasonably suggest to a prospective patron that any service is available
other than those services authorized by this chapter.
Disabilities.
12 IRRY.r °n NG P8F6GR shall eRgag8 M, nrliint n GaFFY n the hiioin °co of -a
massage establishMeRt YRless there is eR file with the Gity GleFk, iR f6l" fGFGe and eff
Pnli^v n vidinn minimurn neve.rage of n e hundred theusand- dollars /$1 001 0001 0001 fnr
RjUFY OF death te E)Re person aFiSiRg eut of the operation of aRy massage establishment
13.1'. uaA4 +Ga^^°4 ^r°°° All massage establishments must comply with all Mate
aed- Federal and State laws and regulations for disabledhandmeappeEl customers.
Page 123
3 -43
14.4-5-.-Doors. All interior+ ^ ^+
doors of amt
_
hank xterier .doors used f..r employee Rtra RGe to Rd exit from the
massage establishment3 shall be unlocked during business hours. All massage
establishments with more than one employee shall keep front exterior doors
unlocked during business hours. No massage may be given within any cubicle,
room, booth or any area within a massage establishment which is fitted with a
door capable of being locked; unless the only door is an exterior door.
15.1 A Access. _No person(s) other than the operator, manager, employees,va4d
peFM!t hel deFS „ ^a ^r this E;hapteF and customers will be allowed beyond the front
lobby, located directly inside the front door entrance during hours of operation.
Any other person(s) found beyond the first interior door leading to the inside of
the business including, but not limited to, hallways, massage rooms,
reception /business offices or lounge area will be in violation of this section.atry
47—Discrimination. _No massage establishment may discriminate or exclude patrons on
the basis of a protected class such ast#e race, color, national origin, ancestry, sew
religion, physical or mental disability, medical condition, marital status, veteran status,
sex, sexual orientation, age or handioap.
.. ..
NOW ROOM
..
or State GauFt, te have vialated any of the offeme.
. 04
Page 124
.�
MMI
5.50.035035 Changes of Business.
A. _Every massage establishment operator shall report immed ately o the Police
Department by way of written notification 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 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 of the premises may be approved by the Chief of Police
provided there is compliance with all applicable regulations of the City.
B. No operator, imassage establishment permit may be sold, transferred or assigned by
a permit holderpe n#tee, 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 ep rmit
holderftermittee 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
operator's permit, and in such case, the permit, upon notification to the Chief of Police,
shall be placed in the name of the surviving partners. An operator'sA— message
s#RhlI' shmRRt 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 an operator's 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.
as&4Re4= Ne massage t8GhRiGiaR peFmit m be selr traRSf8FFed OF aSSOgRed by
.\
(pai4) 4906: QFEJ 94 54 § 4 (pai4) 4994: QFG1 97_5 § 4 (pai:t) 4992)
5.50.040 Operator's Permit Exemptions.
A. The provisions of this chapter Coy -shall not apply to the following classes of persons
or businesses while engaged44e4w4e in the performance of their duties:
1. Phvsicians. suraeons. chiropractors. osteopaths. nurses or any Dhvsical
therapists duly licensed to practice their respective professions in the State of
California and working within the scope of their licenses.
2. Barbers, cosmetologists, estheticians, and manicurists who are duly licensed
under the laws of the State of California while engaging in practices within the
scope of their licenses, except that this provision shall apply solely to the
massaging of the neck, face, hands and feet, and /or scalp of the customers, and
this exception shall not apply to full body work or full body massage.
Page 125
3 -45
3. Hospitals, nursing homes, sanatoriums, or other this raonliwitin,n. a health facilities
duly licensedse;Vises fee ° ^hedule presGFibiRg ^I fees to be paid by the
Stateepefatef of California.
4. Accredited junior colleges and colleges or universities whose coaches and
trainers are acting within the scope of their employment.
5. Trainers of amateur, semi - professional or professional athletes or athletic teams
while engaging in their training responsibilities for and with athletes and trainers
working in conjunction with a specific athletic event such as an outdoor road or
bike race.
5.50.045 Inspection by City Officials and Notices of Violation.
A. The investigating officials of the City shall have the right to enter the premises during
regular business hours prior to the issuance of a permit and subsequently for the
purpose of making reasonable inspections to enforce compliance with this chapter and
with building, fire, electrical, plumbing, and /or health and safety regulations. In the
event an operator's permit has been issued, it may be revoked or suspended in the
manner set forth in this chapter.
• •
T.
�--ire,—.,,-A-s-of this chapter has been violated, he or she shall give notice of
• • • •
WIN
Q (` ^..,^,o^^'^ OR the effective date of the ordin n-edified OR this Ghaptor all
peFFnits are t^ be issued in accordance with the provisions of this chapter may result in
the revocation or suspension of the permit.
Page 126
- - - --
'• - - -
-
Page 126
.-
C. The permit holder shall take immediate action to correct violations, and City officials
may re- inspect the business for compliance.
D. The permit holder may be issued a warning that any future violation of this chapter
may result in suspension or revocation of the permit or the City officials may establish a
specific and reasonable period of time for the correction of the violation(s). No time to
correct need be given for health and safety violations or violations of criminal law.
5.50.050 Operator's Permit Expiration and Renewal.
A. An operator's permit
B° ^rrr,'ts f ^r massage aperateFs, Rd teGhniGiaRs shall be for a period of
three years provided that the permit holder continues^ °r^ �r.t,r, ,o to meet the
requirements set out in this chapter
B. Applications for the next ensuing operator's permit shall be filed with the Chief of
Police before the expiration of the existing permit._ Temporary permits will not be issued
and renewal applications must be filed no later than sixty (60) days prior to the
expiration of the permit to prevent a lapse of the permit.
C. 0-. Renewal applications shall require such information as may be required by the
Chief of Police to update the information contained in the original permit pplication.
The applicant shall accompany the application for renewal with the appropriate filing fee
established by resolution of the City Council. mod. °° 91 § ' 1999: Ord. 97 -7 §
I.QP7: Ord. 96 27 R 1 (part\ 1096: llr.t 94 54 R 1 (part), 4994 QFd 97 5 R 1 /.,.,.t1
GGTiy]1
5.50.05507-5 Suspension, Revocation, Denial and Appeal.
A. Revocation and Suspension of Operator's Permit. . The
Chief of Police may refuse to renew an operator'sa permit or may revoke or suspend an
existing operator's permit on any of the following grounds;
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C. The permit holder shall take immediate action to correct violations, and City officials
may re- inspect the business for compliance.
D. The permit holder may be issued a warning that any future violation of this chapter
may result in suspension or revocation of the permit or the City officials may establish a
specific and reasonable period of time for the correction of the violation(s). No time to
correct need be given for health and safety violations or violations of criminal law.
5.50.050 Operator's Permit Expiration and Renewal.
A. An operator's permit
B° ^rrr,'ts f ^r massage aperateFs, Rd teGhniGiaRs shall be for a period of
three years provided that the permit holder continues^ °r^ �r.t,r, ,o to meet the
requirements set out in this chapter
B. Applications for the next ensuing operator's permit shall be filed with the Chief of
Police before the expiration of the existing permit._ Temporary permits will not be issued
and renewal applications must be filed no later than sixty (60) days prior to the
expiration of the permit to prevent a lapse of the permit.
C. 0-. Renewal applications shall require such information as may be required by the
Chief of Police to update the information contained in the original permit pplication.
The applicant shall accompany the application for renewal with the appropriate filing fee
established by resolution of the City Council. mod. °° 91 § ' 1999: Ord. 97 -7 §
I.QP7: Ord. 96 27 R 1 (part\ 1096: llr.t 94 54 R 1 (part), 4994 QFd 97 5 R 1 /.,.,.t1
GGTiy]1
5.50.05507-5 Suspension, Revocation, Denial and Appeal.
A. Revocation and Suspension of Operator's Permit. . The
Chief of Police may refuse to renew an operator'sa permit or may revoke or suspend an
existing operator's permit on any of the following grounds;
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3 -47
2. The that the °^^';^°„f ^r permit holder has made a material misrepresentation
onfailed W ^^M^'Y With the application for an operator's permit ^^^d.to.Tor
renewal;
3. The permit holder has engaged in conduct or operated a massage establishment
in a manner which violates any of the provisions ^'h ^r ^� of this
chapter, any conditions of the operator's permit, or any of the laws which would
have been grounds for denial of the permit;
4. The permit holder employs or uses any person who is not a Certified Massage
Technician to perform massage services;
5. Violations of this chapter or of California Business and Professions Code section
4600 et seq. have been committed by the massage establishment or by anyone
performing massage services on behalf of the massage establishment; or
6. The permit holder has engaged in fraud, misrepresentation, or false statements
in obtaining or maintaining an operator's permit -,
B. If a suspended permit lapses during the suspension period, a new application
cannotn4u -st be made untilat the end of the suspension period. _ R aRy S, � ^h ^^°^ the
appimeant OF peFFnit hal�-�-. sh-R11.1 have the Fight to appeal te the City CGUIREA in the time
.,.d mpinner set forth this o ^..+i.,.,
i FOR
• •
C. The term of suspension shall last no more than sixty (60) days.
D. Notice.
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1_4 —When the Chief of Police concludes that grounds for denial, suspension,
revocation or refusal to renew a permit exist, the Chief of Police shall serve the
applicant or permit holder, either personally or by certified mail addressed to the
business or residence address of applicant or permit holder, with a notice of
denial or notice of intent to suspend, revoke or refuse to renew permit. _This
notice shall state the reasons for the proposed action, the effective date of the
decision, and the right of the applicant or permit holder to appeal the decision to
the City Manager. TheGe un^I ;e. decision will be final if no appeal is filed
within the time permitted.
E. Appeal.
1_4 —The right to appeal to the City ManagerQa4pG4 shall terminate upon the
expiration of fifteen (15) days fromef the date of mailing or service of the notice.
The notice of appeal is to be sent to the Police Department of the City of Newport
Beach.
2_2—.In the event an appeal is timely filed, the suspension or revocation shall not be
effective until a final decision has been rendered by the City Manager or his or
her designee. Ceaneil. If no appeal is filed, the suspension or revocation shall
become effective upon expiration of the period for filing appeals.
1.__3-.-The City Managerr„„nnil e.f the rity may preside over the hearing on appeal
or, in the alternative, the City Manager may appoint a hearing officer to conduct
the hearing, receive relevant evidence and to submit to the City ManagerCeuaeil
findings and recommendations to be considered by the City Manager. Ceuaeil.
The City ManagerCeugG4 shall render his or her4s. decision within forty -five (45)
days from the date of the hearing or, in the event that a hearing officer has been
appointed, within forty -five (45) days from the date on which the City
ManagerCeunGH receives the findings and recommendations of the hearing
officer. _The decision of the City ManagerCeuRG4 shall be final._ The applicant
shall be entitled to notice of the basis for the proposed action, a copy of the
documents upon which the decision was based and the opportunity to present
contrary evidence at the hearing. If the denial is [eased upeR failiRg the test, the
nlinant shall he entitle.- b. r .r their test at the PGlinn Department h- -t shall
not be entitled to a of the test
4_4— Notice of the date, time and place of the hearing shall be mailed at least ten
(10) days prior to the date of the hearing, by U.S. Mail, with proof of service
attached, addressed to the address listed on the operator's permitaaassage
application, massage teshninian annli^atien, or, the address given in the notice of
appeal, as the case may be.
5_S —The following rules ofas4 evidence shall apply:
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93r,1`]
a. a.—Oral evidence shall be taken only under oath or affirmation._ The
hearing officer shall have authority to administer oaths, and to receive and
rule on admissibility of evidence.
b_t—.Each party shall have the right to call and examine witnesseswitness, to
introduce exhibits, and to cross - examinees opposing
witnesses who have testified under direct examination. _The hearing
officer may call and examine any witness.
c. c—.-Technical rules relating to evidence and witnesses shall not apply to
hearings provided for in this chapter. _Any relevant evidence may be
admitted if it is material and is evidence customarily relied upon by
responsible persons in the conduct of their affairs regardless of the
existence of any common law or statutory rule which might make
admission of such evidence improper over objection in civil actions.
Hearsay testimony may be admissible and used for the purpose of
supplementing or explaining any evidence given in direct examination, but
shall not be sufficient in itself to support a finding unless such testimony
would be admissible over objection in civil actions. The rules of privilege
shall be applicable to the extent they are now, or are hereafter permitted in
civil actions. _Irrelevant, collateral, undue, and repetitious testimony shall
be excluded.
5.50.060 Fees.
The City Council shall establish by resolution, and from time to time may amend, the
fees for the administration of this chapter. The City shat iRG'„a„ ;R this e utie .
Ghapt�. Fees required by this chapter shall be in addition to any required under
any other chapter of this Code.
5.50.065ON Violation and Penalty.
A. Violations of this chapter may be enforced pursuant to the provisions of Chapter
1.04 of the Newport Beach Municipal Code.
B. _Any massage establishment operated, conducted or maintained contrary to the
provisions of this chapter shall be, and the same is declared to be, unlawful and a public
nuisance, and the City may, in addition to or in lieu of prosecuting a criminal action
hereunder, commence an action or actions, proceeding or proceedings, for the
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3 -50
abatement, removal and enjoinment thereof, in the manner provided by law, and shall
take such other steps and shall apply to such court or courts as may have jurisdiction to
grant such relief as will abate or remove such massage establishments and restrain and
enjoin any person from operating, conducting or maintaining a massage establishment
contrary to the provisions of this chapter. (Ord 96 27 § 1 (part) 1996: Ord on 54 § 1
(..aFt) 1994: Ora 90 5 § 1 ipaFt 1992.)
5.50.070085 Severability.
If any section, subsection, sentence, clause or phrase of this chapter is for any reason
held to be invalid or unconstitutional by a decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this chapter. The
City Council hereby declares that it would have passed the ordinance codified in this
chapter, and each and every section, subsection, sentence, clause or phrase not
declared invalid or unconstitutional without regard to whether any portion of this chapter
would be subsequently declared invalid or unconstitutional. ,
Ord. on 54 § 1 (part), 1904: Ord. 97 5 § 1 (part), 1097\
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ATTACHMENT C
RESOLUTION NO. 2015-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA AMENDING THE
MASTER FEE SCHEDULE TO ELIMINATE OUTDATED
MASSAGE FEES
WHEREAS, the City of Newport Beach's ( "City ") Police Department currently
regulates massage establishments pursuant to Chapter 5.50 of the Newport Beach
Municipal Code ( "NBMC ") through a City permit process;
WHEREAS, the City seeks to amend NBMC Chapter 5.50 to reduce City
involvement in local massage therapy licensing, while still encouraging and facilitating
the ethical practice of massage therapy and complying with State law, by relying upon
uniform statewide regulations and by restricting the commercial practice of massage in
the City to those persons duly certified to practice by the California Massage Therapy
Council ( "CAMTC ");
WHEREAS, the City seeks to repeal NBMC Chapter 5.64 regulating holistic
health practitioners because NBMC Chapter 5.64 will no longer be necessary in light of
amendments to NBMC Chapter 5.50 which will cover massage services provided by
holistic health practitioners;
WHEREAS, amendments to NBMC Chapter 5.50 eliminate the need for
individuals to obtain a massage technician permit or an off - premises massage permit;
WHEREAS, the repeal of NBMC Chapter 5.64 will eliminate the need for
individuals to obtain permits related to holistic health practitioners; and
WHEREAS, the City desires to eliminate fees currently existing within the City's
Master Fee Schedule that are associated with permits that will be disposed of as a
result of amendments to NBMC Chapter 5.50 and the repeal of NBMC Chapter 5.64.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The Master Fee Schedule is hereby amended to remove the
following fees related to massage licenses: "Technician Application," "Technician
Renewal," "Off Premises," "Transfer," "Holistic Health Operator," "Holistic Health
Practitioner," "Manager -Stand Alone," "Chair," and "Manager -Add On."
Section 2: The recitals provided in this resolution are true and correct and are
hereby incorporated into the substantive portion of this resolution.
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3 -52
Section 3: The City Council finds the adoption of this resolution is not subject
to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(3)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3 because
the activity is not a project as defined in Section 15378 and has no potential for resulting
in physical change to the environment, directly or indirectly.
Section 4: This resolution shall take effect upon the effective date of
Ordinance No. 2015 -_. The City Clerk shall certify the vote adopting this resolution.
ADOPTED this 24th day of February, 2015.
r_IJ0r� -1n
Leilani I. Brown,
City Clerk
-2-
By:
Edward D. Selich,
Mayor
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