HomeMy WebLinkAbout97-18 - Amending Chapter 5.50, Sections 5.50.025 B.6 and 5.50.050 B.16 of the Newport Beach Municipal Code Pertaining to Massage EstablishmentsORDINANCE NO. 97-18
• AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF NEWPORT BEACH AMENDING
CHAPTER 5.50, SECTIONS 5.50.025 B.6 AND
5.50.050 B.16 OF THE NEWPORT BEACH
MUNICIPAL CODE PERTAINING TO
MASSAGE ESTABLISHMENTS.
The City Council of the City of Newport Beach does hereby ordain as follows:
SECTION 1: Chapter 5.50, Sections 5.50.025 B.6 and 5.50.050 B.16 of the
Newport Beach Municipal Code are amended to read as follows:
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 to ascertain whether such permit should be issued as requested.
The Chief of Police shall, within sixty (60) days of receipt of an application, approve,
• conditionally approve or deny the application. The sixty (60) day period may be extended
for up to thirty (30) additional days, if necessary, to complete the investigation. The Chief
of Police shall issue such permit as requested, unless he /she makes any of the following
findings:
1. The applicant, if an individual, or any of the officers or directors of the
corporation, if the applicant is a corporation; or a partner, if the applicant is a partnership,
or any person directly engaged or employed in the massage establishment, has within 8
years preceding the date of the application,
a. been convicted of a violation of Califomia Penal Code Sections 266h,
2661, 314, 315, 316, 318, Subsections (a) or (b) of Penal Code
Section 647 or any other provision of law pursuant to which a person
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is required to register under the provisions of Penal Code Section
• 290, or when the prosecution accepted a plea of guilty or nolo
contendre to a charge of a violation of California Penal Code Section
415 or any lesser included or lesser related offense, in satisfaction of,
or as a substitute for, any of the previously listed crimes.
b. been convicted of a violation of Health and Safety Code Section
11550 or any offense involving the illegal sale, distribution or
possession of a controlled substance specified in Health and Safety
Code Section 11054, 11055, '11056,11057 or 11058.
C. been convicted of any offense in any other state which is the
equivalent of any of the above- mentioned offenses.
• d. been engaged in conduct in another jurisdiction which, if it had
occurred within the City, would constitute grounds for denial,
suspension or revocation under this Chapter.
e. been subjected to a permanent injunction against the conducting or
maintaining of a nuisance pursuant to Sections 11225 through 11235
of the California Penal Code, or any similar provisions of law in a
jurisdiction outside the State of California.
f. engaged in conduct which would constitute an offense as described
in paragraph (a) of this subsection.
g. committed an act in another jurisdiction which, if committed in this
state, would have been a violation of law and, which, if done by a
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permittee under this Chapter, would be grounds for denial,
• suspension or revocation of the permit.
h. been convicted of an act involving dishonesty, fraud, deceit or moral
turpitude or an act of violence, which act or acts are related to the
qualifications, functions or duties of the operator.
L The applicant has had a massage operator or massage technician
permit or other similar license or permit denied, suspended or
revoked for cause by a licensing authority or by any City, County, or
State.
2. The applicant has made a false, misleading or fraudulent statement or
omission of fact to the City in the permit application process.
• 3. The application does not contain all of the information required by Section
5.50.020.
4. The massage establishment as proposed by the applicant does not comply
with all applicable laws, including, but not limited to, health, zoning, fire and safety
requirements and standards.
5. The applicant has not satisfied the mquirements of this Chapter in the time
specified.
6. If the application is denied for failure! to comply with Section 2 or 3 above,
the applicant may not reapply for a period of 6 months from the date the application was
denied.
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B. All operators and managers shall comply with the following conditions and
• any other conditions specified by the Chief of Police:
1. Except to the extent required, in writing, by a state licensed medical
practitioner, no massage technician, massage technician or employee shall massage the
genitals, gluteal fold, or anal area of any patron or the breasts of any female patron, nor
shall any operator or manager of a massage establishment allow or permit such massage.
No massage operator or designated manager while performing any task or service
associated with the massage business, shall be present in any room with another person
unless the person's genitals, gluteal fold, anus, or, in the case of female, her breast(s), are
fully covered.
2. No person granted a permit pursuant to this Chapter shall use any name or
• conduct business under any designation not specified in his or her permit.
3. All massage establishments required to be licensed under this Chapter shall
have a manager on the premises at all times the massage establishment is open. The
operator of each massage establishment shall file a statement with the Chief of Police
designating the person or persons with power to act as a manager. The operator and/or
on duty manager shall post, on a daily basis, the name of each on duty manager and each
on duty technician in a conspicuous public place in the lobby of the massage
establishment. The operator, or the manager in the operator's absence, shall be
responsible for ensuring compliance with this Chapter.
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4. No licensed establishment shall be open for business without having at least
• one massage technician holding a current valid permit for the specific establishment on the
premises, and on duty, at all times when said establishment is open.
5. The operator and/or designated manager(s) shall ensure the massage
technician permit for each on -duty massage technician is conspicuously displayed in a
public place in the lobby and that each massage; technician is wearing or has on their
person the identification required by Section 5.50.040(6)(3) at all times when in the
massage establishment. Such identification shall be provided to City regulatory officials
upon demand.
6. An operator and/or on duty manager shall be responsible for the conduct of
all employees or independent contractors while they are on the licensed premises. Any
• act or omission of any employee or independent contractor constituting a violation of the
provisions of this Chapter shall be deemed the act or omission of the operator for
purposes of determining whether the operator's license shall be revoked, suspended,
denied or renewed.
7. No operator or manager shall employ any person as a massage technician
who does not have a valid massage technician permit issued pursuant to this Chapter.
Every operator or manager shall report to the Chief of Police any change of employees,
whether by new or renewed employment, discharge or termination, on the form and in the
manner required by the Chief of Police. The report shall contain the name of the
employee and the date of hire or termination. The report shall be made within five (5) days
of the date of hire or termination. The operator shall deliver the permit and photo
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identification card of any massage technician no longer employed by the operator to the
• Chief of Police within five (5) days.
8. All persons employed in the massage establishment shall be fully clothed at
all times. Clothing shall be of a fully opaque, non - transparent material and shall provide
complete covering from mid -thigh to three (3) inches below the collar bone.
9. The operator and/or on duty manager shall maintain a register of all
employees, showing the name, nicknames and aliases used by the employee, home
address, age, birthdate, gender, height, weight, color of hair and eyes, phone numbers,
social security number, date of employment and termination, if any, and duties of each
employee. The above information on each employee shall be maintained in the register
on the premises for a period of two (2) years following termination. The operator and/or
• manager on duty shall make the register of employees available immediately for
inspection by police upon demand of a representative of the police department at all
reasonable times.
10. Each operator shall provide the (thief 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 operator shall comply with alll provisions of this Chapter and any
applicable provisions of the Newport Beach Municipal Code.
5.50.050 Requirements Of Operation.
A. Facilities.
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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 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.
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 on duty massage technicians.
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 no massage technician
shall offer or perform, 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. The
lighting in each massage room shall be at least one (1) sixty (60) watt white light bulb and
shall be activated at all times while the patron is in such room or enclosure. No strobe
Ord 97 -18
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 handwash 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.
•
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 inches (18 "). Two inch (2 ") thick foam pads with a maximum
width of four feet (4') may be used on a massage table and must be covered with durable,
washable plastic or other waterproof material. Beds, floor mattresses and waterbeds not
permitted on the premises.
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B. Operations.
1. 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.
2. Inspections. The operator and/or on duty manager consents to the
inspection of the -massage establishment by the City's Building and Safety, Fire
Department and Police Department and the County Health Department for the purpose of
determining that the provisions of this Chapter or other applicable laws or regulations are
met.
a. The City's Building and Safety, Fire Department, Police Department
and the County Health Department may, from time to time, make an
inspection of each massage establishment for the purpose of
determining that the provisions of this Chapter, State law or other
applicable laws or regulations are met. Routine inspections shall not
occur more than twice a year, unless violations are found or
complaints are received. Criminal investigations may be conducted
as directed by the Chief of Police. The Police Department may
inspect the occupied massage rooms for the purpose of determining
that the provisions of this Chapter are met upon occurrence of any of
the conditions described in Section 5.50.050(17) which would require
the posting of the Notice To All Patrons. During an inspection, the
Police Department may verify the identity of all on -duty employees.
Ord 97 -18
b. Inspections of the massage establishment shall be conducted during
is business hours.
C. A person who operates a massage establishment or his or her agent,
servant or employee commits an offense if he or she refuses to
permit a lawful inspection of the premises by a representative of the
Police Department at anytime it is occupied or open for business.
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.
Ord 97 -18
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.
•
B. 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 common 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
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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 period of 2 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, in writing, at the time
of the application for a permit of the business hours and any changes in hours. No person
• shall operator 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 10:00 p.m. and 8:00 a.m. A massage begun any time before 10:00
p.m., must nevertheless terminate at 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. Advertising. No massage establishment granted a permit under this article
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 reasonable
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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.
12. Insurance. No person 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, documents 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 $100,000.00 for injury or death to one person arising out
of the operation of any massage establishment and the administration of a massage.
13. Handicapped Areas: All massage establishments must comply with all State
and Federal laws and regulations for handicapped customers.
•
14. Compliance. Proof of compliance with all applicable provisions of the
Newport Beach Municipal Code shall be provided.
15. Doors. All front, reception, hallway or front exterior doors (except back or
rear exterior doors used for employee entrance to and exit from the massage
establishment) shall be 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.
16. Access. No person(s) other than valid permit holders under this Chapter
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
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Ord 97 -18
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. Entry
doors to any room shall not be obstructed by any means.
17. Discrimination. No massage establishment may discriminate or exclude
patrons on the basis of the race, sex, religion, age or handicap.
18. Notices. The Chief of Police may require that the following notice be posted
in the event that any employee of the massage establishment or any person who has
been aided and abetted by an employee of the massage establishment has been found,
after full hearing by administrative proceeding or State Court, to have violated any of the
offenses listed in Section 5.50.025 or 5.50.040:
NOTICE TO ALL PATRONS
• THIS MASSAGE ESTABLISHMENT AND THE MASSAGE
ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND
ARE SUBJECT TO INSPECTIO14 BY THE NEWPORT
BEACH POLICE DEPARTMENT WITHOUT PRIOR NOTICE.
a. The notice set forth above shall be prepared and issued by the Chief
of Police.
b. The notices shall be conspicuously posted in a location within the
massage establishment that are easily visible to any person entering
the premises and in each massage room. The notice shall be so
posted for twelve (12) months following the violation of any of the
offenses set forth above.
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C. The requirement for posting the notice described in this Section is
cumulative and in addition to all other remedies, violations and
penalties set forth in this Chapter, or in the ordinances, laws, rules or
regulations of the City of Newport Beach, County of Orange and the
State of California.
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 of the City, and it shall be effective thirb/ (30) days after its adoption.
SECTION 3: This ordinance was introduced at a regular meeting of the City
Council of the City of Newport Beach, held on the 12th day of May, 1997, and adopted on
the 27th day of May, 1997, by the following vote, to wit:
ATTEST:
CITY CLERK
AYES, COUNCILMEMBERS O'NEIL, THOMSON,
EDWARDS, GLOVER, NOYES, MAYOR DEBAY
NOES, COUNCILMEMBERS NONE
ABSENT COUNCILMEMBERS HEDGES
MAYOR
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a
C�
STATE OF CALIFORNIA }
COUNTY OF ORANGE } as.
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do
hereby certify that the whole number of members of the City Council is seven; that the foregoing
ordinance, being Ordinance No. 97 -18 was duly and regularly introduced before and adopted by the
City Council of said City at a regular meeting of said Council, duly and regularly held on the 27th
day of May, 1997, and that the same was so passed and adopted by the following vote, to wit:
Ayes: O Neil, Thomson, Edwards, Glover, Noyes, and Mayor Debay
Noes: None
Absent: Hedges
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 28th day of May, 1997.
(Seal)
� "4 L �1�
City Clerk of the City of
Newport Beach, California
%.r rcaIFICATE OF PUBLICATION
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, LAVONNE M. HARKLESS, City Clerk of the City of Newport Beach, California, do hereby
certify that Ordinance No. 97 -18 has been duly and regularly published according to law and the
order of the City Council of said City and that same was so published in The Daily Pilot, a daily
newspaper of general circulation on the following date, to wit: May 31, 1997.
In witness whereof, I have hereunto subscribed my name this 10th day of
June 1997.
City Clerk of the City of
Newport Beach, California