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HomeMy WebLinkAbout85-32 - Amending Chapter 5.50 of the Newport Beach Municipal Code Pertaining to Massage EstablishmentsORDINANCE NO. 85 -32 • AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING CHAPTER 5.50 OF THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO MASSAGE ESTABLISHMENTS. THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH DOES ORDAIN AS • -1- FOLLOWS: SECTION 1: Chapter 5.50 of the Newport Beach Municipal Code is amended to read as follows: SECTIONS: 5.50.005 Findings and Purpose 5.50.010 Definitions 5.50.015 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 Application for Massage Technician Permit • 5.50.040 Massage Technician Permit Issuance and Denial 5.50.045 Off- Premises Massage Permit 5.50.050 Requirements of Operations 5.50.055 Changes of Business 5.50.060 Fees 5.50.065 Exemption; Existing Permittees 5.50.070 Transfer and Duration of Permits 5.50.075 Suspension, Revocation, Denial and Appeal 5.50.080 Violation and Penalty 5.50.085 Severability • -1- 5.50.005. Findings and Purpose. The City Council finds and declares as follows: A. The permit requirements and restrictions imposed by this • Ordinance are necessary to protect the health, safety and welfare of the citizens of the City of Newport Beach; and B. The City of Newport Beach is authorized, by virtue of the provisions of the City Charter and Section 51031 of the Government Code, to regulate massage establishments and impose reasonable standards relative to the skills and experience of massage operators and massage technicians and the conditions of operation of the massage establishment; and C. There is a significant risk of injury to massage clients with certain medical conditions and this Ordinance provides safeguards against injury and economic loss; and D. There has been an increase in the incidence of acts of prostitution occurring in massage establishments and the establishment of standards for issuance of permits and • restrictions on operation would serve to reduce the risk of illegal activity; and E. 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 more important laws be enforced; and F. The regulations and restrictions contained in this Ordinance tend to discourage massage establishments from degenerating into houses of prostitution and the means utilized in this Ordinance bear a reasonable and rational relationship to the goals sought to be achieved. 5.50.010 Definitions. A. Chief of Police. The Chief of Police of the City of • Newport Beach, B. City Manager. The City Manager of the City of Newport Beach. -2- C. City Council Beach. The City Council of the City of Newport D. Director of Finance. The Director of Finance of the • City of Newport Beach. E. Health Department. The health care agency of the County of Orange that is contracted by the City of Newport Beach. F. Massage. Any method of treating the external parts of the body for remedial, hygienic or any other reason or purpose, whether by rubbing or touching parts of the body with the hand or an instrument, or by application of any substance or thing, including, but not limited to, electricity, water or vapor, oil or alcohol, by way of immersion, transmission or any other procedure. G. Massage establishment. Any business conducted within the City of Newport Beach where any person, for money or any other consideration, administers, to another person, a massage. H. Massage Technician. Any person who administers, to • another person, a massage within a massage establishment or is in training or apprenticeship to administer a massage. I. Notice. Except as otherwise provided in this chapter, any notice may be given by United States Mail, postage prepaid and properly addressed. Notice shall be presumed given when deposited in the United States Mail. J. Operator's Permit. The permit required pursuant to the provisions of this chapter to operate a massage establishment. H. Police Department. The Police Department of the City of Newport Beach. 5.50.015. Operator's Permit Required. No person shall operate a massage establishment within the City without first obtaining an operator's permit pursuant to •Sections 5.50.020 and 5.50.025 of this chapter and securing the necessary business license as required by this code. -3- 5.50.020. Application for Operator's Permit. A. Any person desiring an operator's permit for massage establishment business shall file a written application on the • required form with the Director of Finance who shall refer all such applications to the Chief of Police for an investigation. The applicant shall accompany the application with the appropriate filing fee. For purposes of this section, applicant shall mean the operator of the proposed massage establishment, if a sole proprietorship; each general partner, if a partnership; each officer and director, if a corporation; and each participant, if a joint venture. The application shall contain or be accompanied by the following information: 1. The type of ownership of the business, i.e., whether by individual, partnership, corporation, or otherwise. 2. The precise name under which the massage • establishment is to be conducted. 3. The complete address and all telephone numbers of the massage establishment. 4. A complete list of the names and residence addresses of all proposed massage technicians and employees in the massage establishment and the name and residence addresses of the manager or managing employee proposed to be principally in charge of the operation of the massage establishment. 5. The following personal information concerning the applicant: a. Name and complete residence address. b. Two previous addresses immediately prior to the present address of the applicant. • C. Written proof of age. d. Height, weight, color of hair, eyes and sex. -4- e. Two front faced portrait photographs at least two (211) inches by two (211) inches in size taken by the Police Department. • f. The massage or similar business history and experience of the applicant, including but not limited to, whether or not such person, in previously operating a massage establishment or similar business in this or other city or state under license or permit has had such license or permit denied, revoked, or suspended and the reasons therefor. g. All criminal convictions, excluding traffic, misdemeanor or infraction violations. h. A complete set of fingerprints taken by the Police Department. 6. Authorization for the City, its agents and employees to seek verification of the information contained in the application. 7. Such other information and identification as deemed • necessary by the Chief of Police. 8. A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct. B. Each operator must pass a written test dealing with the requirements of this chapter to insure complete understanding of the operator's and manager's duties prior to the issuance of the operator's permit. 5.50.025. Operator's Permit Issuance and Denial. A. Upon receipt of a written application for a permit, the Chief of Police shall conduct an investigation, in such manner as he or she deems appropriate in order to ascertain whether such permit should be issued as requested. The Chief of Police shall • render a recommendation to the City Manager to approve, conditionally approve, or deny the application within forty -five (45) days of the filing of an application. Said forty -five (45) day period may be continued for an additional thirty (30) days if -5- necessitated by the occurrence of events beyond the control of the Chief of Police. The City Manager shall issue such permit as requested unless the City Manager makes any of the following • findings: (1) Any person that will be directly engaged or employed in the massage establishment, has been convicted of a violation of Health and Safety Code Section 11550 or a violation of Penal Code Sections 266i, 315, 316, 318, or 647(b), or has been convicted in any other state of any offense which, if committed or attempted in this state, would have been punished as one or more of the above mentioned offenses, or that any such person is required to register under the provisions of Penal Code Section 290. (2) Any person that will be directly engaged or employed in the massage establishment, has been convicted of any felony offense involving the sale of a controlled substance specified in the Health and Safety Code Section 11054, 11055, is 11056, 11057 or 11058 or has been convicted 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 above mentioned offenses. (3) Any person that will be directly engaged or employed in the massage establishment, has committed an act, which, if done by a permittee under this chapter, would be grounds for suspension or revocation of the permit. (4) Any person that will be directly engaged or employed in the massage establishment, has been convicted of an act involving dishonesty, fraud or deceit with the intent to substantially benefit himself, herself, or another or substantially to injure another, or an act of violence, which act • or acts are substantially related to the qualifications, functions, or duties of the massage establishment. (5) The operations of the massage establishment would, if allowed, constitute a public nuisance. -6- (6) The applicant has knowingly made a false, misleading, or fraudulent statement of fact to the City in the permit application process. is (7) The application does not contain the information required by Section 5.50.020. (8) The applicant has not satisfied the requirements of this chapter. B. The City Manager shall specify such conditions on the issuance of an operator's permit as are reasonably necessary to ensure compliance with this chapter and other applicable laws. Such conditions shall include, but not be limited to, the following: (1) No massage technician, or employee when working or present in the massage establishment, shall expose his or her genitals, buttocks, or, in the case of a female, her breast (s) nor, in the course of administering a massage, make intentional contact with the genitals or anus of another person. • (2) No person shall massage any other person, or give or administer any bath or baths, or to give or administer any of the procedures or services set forth in this chapter in a manner in which the person giving or administering such massage or bath touches the person receiving the massage or bath upon the genitals, breasts or buttocks with intent to arouse, appeal to or gratify the lust or passions or sexual desires of such person receiving the massage or bath. (3) No person granted a permit as herein provided shall operate under any name or conduct business under any designation not specified in his or her permit. (4) All massage establishments required to be licensed under this chapter shall have a manager on the premises • at all times during which the massage establishment is open. The operator of each massage establishment required to be licensed under this chapter shall file a statement with the Chief of Police designating the person or persons with power to act as a -7- manager at the operator's massage establishment. The manager of employ as a massage technician or massage technician aide in a massage establishment any person who has not obtained and then possesses a valid massage technician permit issued pursuant to Section 5.50.035 of this chapter. Every holder of an operator's permit under this chapter shall report to the Director of Finance and the Chief of Police any and all changes of employees, whether by new or renewed employment, discharge, or termination, stating the name of the employee, and the date of change. The report shall be made within five (5) days of the change. The operator shall take all reasonable steps for the return of the police • permit and photo identification card of all massage technicians who are discharged, or who otherwise terminate their employment, to the Chief of Police. (6) All persons, massage technicians, and attendants shall wear clean outer garments. These garments must be of a fully opaque material and provide the complete covering from mid -thigh to shoulders of such employees, massage technicians, and attendants. (7) No massage technician, massage technician aide or employee, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, buttocks, or in the case of female, her breast(s), are fully covered. • (8) The massage establishment shall not refuse service on the basis of a customer's sex, race, color, religion, ancestry, national origin or other arbitrary factor proscribed by the Unruh Civil Rights Act, Civil Code Section 51, et seq. "M each massage establishment shall take necessary steps to ensure that copies of the massage technician permit for each on -duty • massage technician shall be conspicuously posted on the premises so that the same may be readily seen by persons entering the premises. (5) No person having an operator's permit shall employ as a massage technician or massage technician aide in a massage establishment any person who has not obtained and then possesses a valid massage technician permit issued pursuant to Section 5.50.035 of this chapter. Every holder of an operator's permit under this chapter shall report to the Director of Finance and the Chief of Police any and all changes of employees, whether by new or renewed employment, discharge, or termination, stating the name of the employee, and the date of change. The report shall be made within five (5) days of the change. The operator shall take all reasonable steps for the return of the police • permit and photo identification card of all massage technicians who are discharged, or who otherwise terminate their employment, to the Chief of Police. (6) All persons, massage technicians, and attendants shall wear clean outer garments. These garments must be of a fully opaque material and provide the complete covering from mid -thigh to shoulders of such employees, massage technicians, and attendants. (7) No massage technician, massage technician aide or employee, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, buttocks, or in the case of female, her breast(s), are fully covered. • (8) The massage establishment shall not refuse service on the basis of a customer's sex, race, color, religion, ancestry, national origin or other arbitrary factor proscribed by the Unruh Civil Rights Act, Civil Code Section 51, et seq. "M • C (9) The massage establishment shall comply with Section 5.50.050, Requirements of Operation. (10) Each person having an operator's permit shall provide the Chief of Police with evidence of the insurance required by Section 5.50.050 within forty -five (45) days of the date of issuance of the permit. (11) The massage establishment shall comply with all provisions of this chapter and the applicable provisions of the Newport Beach Municipal Code. 5.50.030 Massage Technician Permit. No person shall perform or administer a massage in a massage establishment, or for compensation unless such person has in effect a massage technician permit issued pursuant to Sections 5.50.035 and 5.50.040 of this chapter. A massage technician aide and any person in training or apprenticeship shall comply with the requirements of Sections 5.50.035 and 5.50.040. 5.50.035 Application for Massage Technician Permit. A. Any person desiring a massage technician permit shall file a written application on the required form with the Director of Finance who shall refer all such applications to the Chief of Police for an investigation. The applicant shall accompany the application with the appropriate filing fee. The application shall contain or be accompanied by the following information: (1) A statement of the exact location at which the applicant will be working as a massage technician, including the full street address and all telephone numbers associated with said location, and the name and address of the massage establishment. (2) A statement, in writing, from a licensed physician in the State of California that he or she has examined the applicant within the past thirty (30) day period preceding said application and believes the applicant to be free from all communicable diseases. -9- (3) The following personal information concerning the applicant: (a) Name, complete residence address and telephone; • (b) Two (2) previous addresses immediately prior to the present address of the applicant; sex. (c) Written proof of age; (d) Height, weight, color of hair and eyes, and (e) Two (2) front faced portrait photographs at least two (211) inches by two (211) inches in size taken by the Police Department. (f) The massage business or similar business history experience of the applicant, including but not limited to, whether or not such person, in previously performing massage services or operating a massage establishment or similar business in this City or other city of this state under license or permit, has had such license or permit denied, revoked, or suspended and • the reasons therefor. (4) All criminal convictions and reasons therefor excluding traffic, misdemeanor or infraction violations. (5) A complete set of fingerprints taken by the Police Department. (6) Such other information and identification as deemed necessary by the Chief of Police. (7) Authorization for the City, its agents and employees to seek verification of the information contained in the application. (8) A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct. • B. Each applicant must furnish a diploma or certificate and transcript of graduation from an approved school wherein the method, profession, anatomical and physiological knowledge and practice of massage technician is taught. The term "approved -10- school" means and includes any school or institution of learning licensed by the State of California and approved by the State Superintendent of Public Instruction pursuant to Education Code • Section 94311D and reviewed by the Superintendent within the preceding twelve (12) month period which school has for its purpose teaching of the theory, the method, profession, or work of massage technicians and which school requires a resident course of study of not less than 300 hours. The applicant must also supply a course description, an outline of material covered, transcript and a letter to the City from the school administrator verifying completion. The Chief of Police may consider an applicant's study of massage completed outside the State of California if proof of completion from a formalized course of study in massage practice, anatomy, physiology is provided upon application. Proof of completion shall include, but not be limited to, dates of study, the name of the school attended, and the address and phone number • of the school attended. Any outside course of study submitted for approval shall meet the State of California's Office of Post Secondary Education's minimum requirements. C. The applicant must pass a written examination prior to the issuance of the massage technician permit. The examination shall meet the following requirements: (1) The examination shall, in the judgment of the City Manager, be such as to fairly determine the ability of the applicant to perform the work which the applicant will be authorized to do by the permit applied for, and shall cover the following subjects: anatomy, physiology, hygiene, sanitation, massage theory, ethics of massage practice, first aid and CPR, • and the provision of this chapter. (2) The examination may be conducted by the Finance Director, or his or her designee. Qualified persons shall prepare the examination. A qualified person shall have at least -11- five (5) years of licensing or practice in his or her health care field and shall include licensed health care professionals as doctors, chiropractors, physical therapists, and individuals who • have pursued required courses in and graduated from an approved massage school and received a diploma from the massage school. (3) The Chief of Police and Finance Director shall establish standards and procedures governing the administration and grading of all examinations and shall exercise such supervision as may be necessary to ensure compliance therewith. (4) The examination will be in the English language. In the event that the application requires that the examination be given in another language, he or she must notify the Chief of Police in advance and pay the appropriate fee for translation. (5) An applicant who fails to pass the examination shall not be eligible for another examination until sixty (60) days after the previous examination. An applicant who fails to pass upon a third attempt, shall not be again eligible until six • (6) months thereafter. An additional processing fee may be required to be filed with the Chief of Police prior to each examination. 5.50.040 Massage Technician Permit Issuance and Denial. A. Upon receipt of a written application for a permit, the Chief of Police shall conduct an investigation in such manner as he or she deems appropriate in order to ascertain whether such permit should be issued as requested. The Chief of Police shall make a recommendation to the City Manager to approve, conditionaly approve, or deny the application within forty -five (45) days of the filing of an application. Said forty -five (45) day period may be continued for an additional thirty (30) days if necessitated by the occurrence of events beyond the control of • the Chief of Police. The City Manager shall issue such permit as requested unless the City Manager makes any of the following findings: -12- 1. The applicant has been convicted of a violation of Health and Safety Code Section 11550 or a violation of Penal Code Sections 2661, 351, 316, 318, or 647(b), or has been convicted in • any other state of any offense which, if committed or attempted in this state, would have been punished as one or more of the above mentioned offenses, or that the applicant is required to register under the provisions of Penal Code Section 290. 2. The applicant has been convicted of any felony offense involving the sale of a controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057, or 11058 or has been convicted 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 above mentioned offenses. 3. The applicant has committed an act, which, if done by a permittee under this chapter, would be grounds for suspension or revocation of the permit. 4. The applicant has been convicted of an act involving • dishonesty, fraud, or deceit with the intent to substantially benefit himself, herself, or another or substantially injure another, or an act of violence, which act or acts are substantially related to the qualifications, functions, or duties of a massage technician. 5. The applicant has knowingly made a false, misleading, or fraudulent statement of fact to the City in the permit application process. 6. The application does not contain the information required by Section 5.50.035. 7. The applicant has not satisfied the requirement of this chapter. B. The City Manager shall specify such conditions on the issuance of a massage technician's permit that are reasonably necessary to ensure compliance with this chapter and other applicable laws. Such conditions shall include, but not be limited to, the following: -13- 1. No massage technician or employee, when working or present in the massage establishment, shall expose his or her genitals, buttocks, or, in the case of a female, her breast(s) 10 nor, in the course of administering a massage, make intentional contact with the genitals or anus of another person. 2. No person shall massage any other person, or give or administer any bath(s), or to give or administer any of the procedures or services set forth in this chapter in a manner in which the person giving or administering such massage or bath(s) touches the person receiving the massage or bath(s) upon the genitals, breasts or buttocks with intent to arouse, appeal to or gratify the lust or passions or sexual desires of such person receiving the massage or bath(s). 3. That the holder of the permit must display a photo identification card prepared by the Police Department when working pursuant to the permit. This card must be worn and displayed on the outer clothing. If a permit holder changes his • or her business address, he or she shall be required, within seven (7) days after such change occurs, to obtain from the Police Department a new photo identification card and advise the Director of Finance, in writing, of the new business address. 4. Every person to whom or for whom a permit shall have been granted pursuant to the provisions of this chapter shall display said permit in a conspicuous place within the massage establishment so that the same may be readily seen by persons entering the premises. 5. All persons, massage technicians, and attendants shall wear clean outer garments. These garments must be of a fully opaque material and provide the complete covering from mid- thigh to shoulders of such employees, massage technicians, and • attendants. 5.50.045 Off - Premises Massage Permit. A. For purposes of this chapter, a massage performed or administered off - premises and requiring an off - premises massage -14- permit shall be one performed or administered for money or other consideration at a location other than a massage establishment. The massage establishment shall only include those premises for which an operator's permit has been obtained and which complies with Section 5.50.050, Requirements of Operation, of this chapter. B. No person shall perform or administer a massage off the premises of a massage establishment, for money or other consideration, without first obtaining massage technician permit under Sections 5.50.035 and 5.50.040 and an off - premises massage permit under this section. Any person desiring an off - premises massage permit shall file a written application on the required form with the Director of Finance who shall refer all such applications to the Chief of Police for an investigation. The applicant shall accompany the application with the appropriate filing fee. The application shall contain or be accompanied by the following information: • 1. The complete name, residence and business address and telephone number of the applicant. 2. The precise name and complete address and telephone number of each person receiving the off - premise massage. 3. The complete address at which the off - premises massage is to be conducted. 4. The specific reasons necessitating the performance of the massage at a location other than a massage establishment. 5. Such other information deemed necessary by the Chief of Police. C. Upon receipt of a written application for an off - premises massage permit, the Chief of Police shall conduct an investigation in such manner as he or she deems appropriate in order to ascertain whether such permit should be issued as requested. The Chief of Police shall make a recommendation to the City Manager to approve, conditionally approve, or deny the application within forty -five (45) days of the filing of an -15- application. Said forty -five (45) day period may be continued for an additional thirty (30) days if necessitated by the occurrence of events beyond the control of the Chief of Police. • The City Manager shall issue such permit as requested unless the City Manager finds that it is not reasonably necessary to perform or administer the massage at a location other than the massage establishment. The City Manager shall specify such conditions on the issuance of the off - premises massage permit that are reasonably necessary to ensure compliance with this chapter and other applicable laws. 5.50.050 Requirements of Operation. 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 of Newport Beach and the County Health Care Agency for approval and shall be readable sign that will be posted adjacent to the main entrance identifying the premise as a massage establishment. The signs may not use any strobe lights or other flashing lights to illuminate the front of the business. Each operator shall have posted, in a conspicuous location upon the premises where the massage operation is to be conducted, the operator's permit as issued by the Chief of Police. 3. Lighting. 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 (1) forty (40) watt white • light bulb. No strobe flashing lights shall be used. No colored lights shall be used as a primary light source nor shall any coverings be used which change the color of the primary light source. -16- accompanied by the appropriate plan check fee. • 2. Signs. Each operator shall erect and maintain, after obtaining the necessary permits, a recognizable and readable sign that will be posted adjacent to the main entrance identifying the premise as a massage establishment. The signs may not use any strobe lights or other flashing lights to illuminate the front of the business. Each operator shall have posted, in a conspicuous location upon the premises where the massage operation is to be conducted, the operator's permit as issued by the Chief of Police. 3. Lighting. 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 (1) forty (40) watt white • light bulb. No strobe flashing lights shall be used. No colored lights shall be used as a primary light source nor shall any coverings be used which change the color of the primary light source. -16- 4. Equipment. Each operator shall provide and maintain adequate equipment for disinfecting and sterilizing of met. The Health Department shall, from time to time, and at least twice a year, make an inspection of each massage establishment in the City for the purposes of determining that • the health provisions of the laws of the State of California and Ordinances of the City of Newport Beach and County of Orange are met. 6. Facilities. A minimum of one (1) tub or shower, and one (1) toilet and wash basin shall be provided for the patrons in every massage establishment. If male and female patrons are to be served by the massage establishment, separate bathing, massage rooms, dressing, toilet facilities, steam rooms and saunas shall be provided for male and female patrons. Hot and cold running water under pressure shall be provided to all wash basins, bathtubs, showers, and similar equipment. In addition to the wash basin provided for patrons, a minimum of one (1) instruments used in massage. is 5. Inspections. The City's Building and Safety, Fire of employees, which basin shall provide Department, Chief of Police or his or her designee and the Health Department, shall inspect the premises proposed to be devoted to soap or the massage establishment and shall certify on the required permit application, compliance or noncompliance with the practical to the area devoted to the regulations in this chapter. The City's Building and Safety, massage Fire Department, Chief of Police or his or her designee and the Health Department may, from time to time, and at least twice each year, make an inspection of each massage establishment for the purpose of determining that the provisions of this chapter are met. The Health Department shall, from time to time, and at least twice a year, make an inspection of each massage establishment in the City for the purposes of determining that • the health provisions of the laws of the State of California and Ordinances of the City of Newport Beach and County of Orange are met. 6. Facilities. A minimum of one (1) tub or shower, and one (1) toilet and wash basin shall be provided for the patrons in every massage establishment. If male and female patrons are to be served by the massage establishment, separate bathing, massage rooms, dressing, toilet facilities, steam rooms and saunas shall be provided for male and female patrons. Hot and cold running water under pressure shall be provided to all wash basins, bathtubs, showers, and similar equipment. In addition to the wash basin provided for patrons, a minimum of one (1) -17- separate wash basin shall be provided in each massage establishment for use of employees, which basin shall provide • detergent hot at all times and shall be soap or and running water located within or as practical to the area devoted to the performing of massage services. A permanently installed soap -17- dispenser, filled with soap, and a single service towel dispenser shall be provided at the restroom handwash sink, employee handwash sink and shower stalls. No bar soap can be used. A • trash receptacle shall be provided in each toilet room. 7. Separate Rooms. In any establishment in which massage services are rendered only to members of the same sex at any one time, such persons of the same sex may be placed in a single, separate room, or the operators of the massage establishment may elect to place such persons of the same sex in separate enclosed rooms or booths having adequate ventilation to an area outside said room or booth while massage services are being performed. No door to a room in which a massage is being performed shall be locked. 8. Maintenance. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other physical facilities day the business is in operation. Bathtubs shall be thoroughly cleaned after each use. All walls, floors and ceilings of each restroom and shower areas shall be made smooth and easily cleanable. All floors shall have an approved floor covering. No carpeting shall be installed in any of these areas. 9. Massage Table. A massage table shall be provided in each massage room and the massage shall be performed on this massage table. The table should have a minimum height of eighteen (1811) inches. Two (211) 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 may not be used in the administration of a massge. 10. Linen. Common use of towels or linens shall not be permitted. Towels and linen must be laundered after each -18- for the massage establishment must be in good repair and maintained in a clean and sanitary condition. Wet and dry heat • rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments, and toilet rooms shall be thoroughly cleaned each day the business is in operation. Bathtubs shall be thoroughly cleaned after each use. All walls, floors and ceilings of each restroom and shower areas shall be made smooth and easily cleanable. All floors shall have an approved floor covering. No carpeting shall be installed in any of these areas. 9. Massage Table. A massage table shall be provided in each massage room and the massage shall be performed on this massage table. The table should have a minimum height of eighteen (1811) inches. Two (211) 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 may not be used in the administration of a massge. 10. Linen. Common use of towels or linens shall not be permitted. Towels and linen must be laundered after each -18- usage. Separate enclosed cabinets shall be provided for the 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. 12. Alcoholic Beverages /Drugs. No person shall enter, be, 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 drug. The owner, operator, and manager shall be responsible for taking reasonable steps to ensure that no such person shall enter or remain upon the massage establishment. Service of alcoholic beverages shall not be permitted. • 13. Recordings. No building or part thereof used as a massage establishment shall be equipped with any electronic, mechanical, or artificial device used or to be used for recording or for monitoring the performance of the massage or the conversation or other sounds in the massage rooms. 14. Coverings. Each establishment shall provide to all patrons, clean, sanitary and opaque coverings capable of covering the patrons specified anatomical areas, including the genital area and buttocks and female breast(s). No common use of such coverings shall be permitted and re -use is prohibited unless adequately cleaned. The genital area of the patrons shall be covered at all times during the performance of the massage. 15. Records. Every person operating a massage • establishment shall keep a record of the dates and hours of each treatment or service, name and address of the patron, name of technician administering such service and description of the treatment or service rendered. These records shall be retained -19- storage of clean and soiled linen and shall be plainly marked "clean linen" and "soiled linen" and shall have doors or covers. 11. 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. 12. Alcoholic Beverages /Drugs. No person shall enter, be, 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 drug. The owner, operator, and manager shall be responsible for taking reasonable steps to ensure that no such person shall enter or remain upon the massage establishment. Service of alcoholic beverages shall not be permitted. • 13. Recordings. No building or part thereof used as a massage establishment shall be equipped with any electronic, mechanical, or artificial device used or to be used for recording or for monitoring the performance of the massage or the conversation or other sounds in the massage rooms. 14. Coverings. Each establishment shall provide to all patrons, clean, sanitary and opaque coverings capable of covering the patrons specified anatomical areas, including the genital area and buttocks and female breast(s). No common use of such coverings shall be permitted and re -use is prohibited unless adequately cleaned. The genital area of the patrons shall be covered at all times during the performance of the massage. 15. Records. Every person operating a massage • establishment shall keep a record of the dates and hours of each treatment or service, name and address of the patron, name of technician administering such service and description of the treatment or service rendered. These records shall be retained -19- • • • for a period of twenty -four (24) months after such treatment or service. 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. Said records shall be open to inspection by the health officials charged with the responsibility of preventing the spread of cummunicable and contagious diseases and to officials charged with administering this code. The information furnished or secured as a result of any such records should be used only to ensure and enforce compliance with this chapter and other applicable laws and shall otherwise 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. Officials charged with enforcement of this chapter shall periodically inspect said records to insure compliance with this section. 16. Hours of Operation. No person shall operate a massage establishment, or administer a massage in any massage establishment or administer a massage pursuant to an off - premises massage permit between the hours of 11:00 P.M. and 7 :00 A.M. All customers, patrons and visitors shall be excluded from the massage establishment during those hours. 17. Insurance. No person, association, firm or corporation shall engage in, conduct or carry on the business of a massage establishment unless there is on file with the City Clerk, in full force and effect at all times, a document issued by an insurance company authorized to do business in the State of California evidencing that the permittee is insured under a liability insurance policy providing minimum coverage of $500,000.00 for injury or death to one person arising out of the operation of any massage establishment and the administration of a massage. -20- 18. Compliance. Proof of compliance with all applicable provisions of the Newport Beach Municipal Code shall be provided. • 5.50.055. Changes of Business. Every massage establishment operator shall report immediately to the Chief of Police 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 ten (10 %) 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 and the Director of Finance provided there is compliance with all applicable regulations of the City of Newport Beach. • 5.50.060. Fees. The City Council shall establish by resolution, and from time to time, amend fees for the administration of this chapter. The City shall include in this resolution a Health Services Fee Schedule prescribing annual fees to be paid by the operator of each massage establishment, such fees to be paid directly to the County of Orange Health Department and retained by the County as reimbursement for said services related to this chapter. Fees required by this chapter shall be in addition to any required under any other chapter of this code. 5.50.065. Exemption; Existing Permittees. A. The requirements of this chapter shall have no application and no effect upon and shall not be construed as • applying to any persons designated as follows: physician, surgeon, chiropractor, osteopath, or any registered or licensed vocational nurse working under the supervision of a physician, surgeon, chiropractor, or osteopath duly licensed to practice -21- any other law of this state. Practical nurses or other persons without qualifications as massage technicians, or other persons not otherwise licensed by the State of California to practice pursuant to the Medical Practice Act, whether employed by physicians, surgeons, chiropractors, or osteopaths or not, may not give massage or massage procedures. B. Commencing on the date of adoption of this chapter, permits are to be issued in accordance with the provisions of this chapter. C. As to persons holding existing permits, the following schedule of compliance is to apply: (1) Existing operator's permits shall continue in effect until March 1, 1987 and shall be renewed in accordance with provisions of Section 5.50.075 pending compliance with the requirements of Subdivisions 2 and 3 of this section. (2) Within ninety (90) days of the effective date of this Ordinance the massage establishment is to be brought into compliance with all requirements of Section 5.50.050 of this chapter. (3) All persons operating under an existing massage technician permit and otherwise meeting the requirements for permit renewal are by March 1, 1987 to obtain a new permit in accordance with the provisions of this chapter. Persons currently holding a valid massage technician permit shall be • exempt from the schooling requirement, but must satisfactorily complete the written test. -22- their respective professions in the State of California, nor shall the requirements of this chapter apply to any treatment administered in good faith in the course of the practice of any healing art or professions by any person licensed by the State of California to practice any such art of profession under the Business and Professions Code of the State of California or of any other law of this state. Practical nurses or other persons without qualifications as massage technicians, or other persons not otherwise licensed by the State of California to practice pursuant to the Medical Practice Act, whether employed by physicians, surgeons, chiropractors, or osteopaths or not, may not give massage or massage procedures. B. Commencing on the date of adoption of this chapter, permits are to be issued in accordance with the provisions of this chapter. C. As to persons holding existing permits, the following schedule of compliance is to apply: (1) Existing operator's permits shall continue in effect until March 1, 1987 and shall be renewed in accordance with provisions of Section 5.50.075 pending compliance with the requirements of Subdivisions 2 and 3 of this section. (2) Within ninety (90) days of the effective date of this Ordinance the massage establishment is to be brought into compliance with all requirements of Section 5.50.050 of this chapter. (3) All persons operating under an existing massage technician permit and otherwise meeting the requirements for permit renewal are by March 1, 1987 to obtain a new permit in accordance with the provisions of this chapter. Persons currently holding a valid massage technician permit shall be • exempt from the schooling requirement, but must satisfactorily complete the written test. -22- (4) All persons operating under an existing off - premises massage permit and otherwise meeting the requirements for permit renewal are by March 1, 1987 to obtain a new permit in accordance with the provisions of this chapter. Reasonable extensions of the time period specified in Subdivisions 2, 3 and 4 shall be granted by the City Manager upon a proper showing and upon timely requests therefor. 5.50.070 Transfer and Duration of Permits. A. No permit issued hereunder shall be transferrable to any other person or establishment; provided, however, an additional location or change of location of a massage technician permit will be allowed upon thirty (30) days' prior written notice to the Chief of Police and the Director of Finance. B. All operator, massage technician and off - premises massage permits shall be issued for the period of twenty -four (24) months and shall expire twenty -four (24) months from its issuance. C. Applications for the next insuring permit shall be filed with the Director of Finance before the expiration of the existing permit. Such renewal applications must be filed no later than thirty (30) days prior to the expiration of the permit to prevent a lapse of the permit. D. Each applicant for renewal shall file such information as may be required by the Chief of Police to update the information required for his or her original permit application. Each renewal applicant shall include a statement in writing from a licensed physician in the State of California that he or she has examined the applicant within the past thirty (30) day period preceding said application and believes the renewal applicant to be free from all communicable diseases. The • applicant shall accompany the application for renewal with the appropriate filing fee. -23- 5.50.075. Suspension, Revocation, Denial and Appeal. The City Manager may refuse to renew a permit or may revoke or suspend an existing permit on the grounds that the • applicant or permit holder has failed to comply with the permit conditions or other requirements of this chapter. No suspended permit may be renewed. If a suspended permit lapses during the suspension period, a new application must be made at the end of the suspension period. In any such case, the applicant or permit holder shall have the right to appeal to the City Council in the time and manner set forth in this section. When the City Manager concludes that grounds for suspension, revocation or refusal to renew a permit exist, the City Manager shall serve the applicant or permit holder, either personally or by certified mail addressed to the business address of applicant or permit holder, with a Notice of Intent to Suspend, Revoke or Refuse to Renew Permit. This notice shall state the reasons for the proposed revocation, the effective date • of the revocation if no appeal is filed by applicant or permit holder, and the right of the applicant or permit holder to appeal to the City Council and the decision of the City Manager to suspend, revoke or refuse to renew the permit. The right to appeal to the City Council shall terminate upon the expiration of fifteen (15) days following the personal service or deposit of the Notice of Intent to Suspend, Revoke or Refuse to Renew Permit in the United States Mail, whichever shall occur first. The City Council of the City of Newport Beach may preside over the hearing on appeal or, in the alternative, appoint a hearing officer to conduct the hearing, receive relevant evidence and to submit to the City Council findings and recommendations to be considered by the City Council of the City • of Newport Beach. The City Council of the City of Newport Beach shall render its 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 -24- which the City Council receives the findings and recommendations of the hearing officer. The decision of the City Council shall be final. • 5.50.080. Violation and Penalty. A. Every person, except those persons who are specifically exempt by this chapter, whether acting as an individual, owner, employee of the owner, operator or employee of the operator, or whether acting as a mere helper for the owner, employee, or operator, or whether acting as a participant or worker in any way, who gives massage or conducts a massage establishment or room, or who gives or administers, or who practices the giving or administering of steam baths, electric tub baths, shower baths, sponge baths, vapor baths, fomentation, mineral baths, alcohol rubs, Russian, Swedish or Turkish baths, or any other type of therapy or who operates a massage establishment within the City or who does mentioned in • paying for a provision of B. Any :)r practices any of the other things or acts this chapter without first obtaining a permit and license to do so from the City, or shall violate any this chapter, shall be guilty of a misdemeanor. owner, operator, manager, or permittee in charge or in control of a massage establishment who knowingly employs a person performing as a massage technician as defined in this chapter who is not in possession of a valid permit, or who allows such an employee to perform, operate or practice within such a place of business, is guilty of a misdemeanor. C. Any massage establishment operated, conducted, or maintained contrary to and the same is hereby nuisance and the City prosecuting a criminal actions, proceeding or • and enjoyment thereof, the provisions of this chapter shall be, declared to be unlawful and a public nay, in addition to or in lieu of action hereunder, commence an action or proceedings, for the abatement, removal 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 -25- 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. is 5.50.085. Severability. If any section, subsection, sentence, clause, or phrase of this Ordinance 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 the Ordinance. The City Council hereby declares that it would have passed this.Ordinance and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. SECTION 2. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper • within fifteen (15) days after its adoption. The Ordinance shall become effective thirty (30) days from its adoption. -26- This Ordinance the City Council of the the 10th day of • on the 24th day following vote, to wit: ATTEST: ty Clerk • was introduced at a regular meeting of City of Newport Beach, held on February , 1986, and was adopted of February , 1986, by the AYES, COUNCILMEMBERS Agee, Cox, Hart, Heather, Maurer, Plummer, Strauss NOES, COUNCILMEMBERS ABSENT COUNCILMEMBERS _27_