HomeMy WebLinkAbout92-5 - Amending Chapter 5.50 of the Newport Beach Municipal Code Pertaining to Massage Establishments•
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NO. 92 -_5
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 hereby
ordain as follows:
SECTION 1: Chapter 5.50 of the Newport Beach Municipal
Code is amended to read:
CHAPTER 5.50
MASSAGE ESTABLISHMENTS
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 Operation.
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.
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.
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 by imposing reasonable
standards relative to the skill and experience of massage operators
and massage technicians and reasonable conditions to the operation
of the massage establishment.
C. There is a significant risk or injury to massage clients
with certain medical conditions and this Ordinance provides
safeguards against injury and economic loss.
D. There has been an increase in the incidence of acts of
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prostitution and other unlawful sexual activity 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.
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.
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, or his /her designated representative.
C. "City Council." The City Council of the City of Newport
Beach.
D. "Conviction ", "Convicted." A plea or verdict of guilty
or a conviction following a plea of nolo contendere.
E. "Health Department." The Health Care Agency of the
County of Orange the services of which are performed pursuant to
contract with the City of Newport Beach.
F. "Manager." The person(s) designated by operator of the
massage establishment to act as representative and agent of
operator in managing day -to -day operations with same liabilities
and responsibilities.
G. "Massage." Any method of treating the external parts of
• the body for remedial, hygienic or any other reason or purpose,
whether by means of pressure, rubbing or other manner of touching
external parts of the body with the hands, or with the aid of any
mechanical or electrical apparatus with or without supplementary
aids such as oils, powders, creams or other similar preparations.
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H. "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.
I. "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.
J. "Operator." All persons who have an ownership interest
in the massage establishment.
K. "Operator's Permit." The permit required pursuant to the
provisions of this Chapter to operate a massage establishment.
L. "Person." Any individual, or corporation, partnership,
association or other group or combination of individuals acting as
an entity.
M. "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.
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 City Manager who shall refer all such
applications to the Chief of Police for an investigation. The
application shall be accompanied by the appropriate filing fee.
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 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. If the
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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 (5%) 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.
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. A description of any other business operated on the
same premises, or within the City of Newport Beach or the
State of California which is owned or operated by the
applicant.
6. 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. Acceptable proof that the applicant is at least
eighteen (18) years of age.
d. Height, weight, color of hair, eyes and sex.
e. Two (2) front faced portrait photographs at
least two inches (211) by two inches (211) in size.
f. The applicants business, occupation and
employment history for five (5) years preceding the date
of application, including, but not limited to, the
massage or similar business history and experience of the
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applicant.
g. The permit history of the applicant; whether
such person has ever had any permit or license issued by
any agency, board, city, county, territory or state; the
date of issuance of such a permit or license, whether the
• permit or license was denied, revoked or suspended; or if
a vocational or professional license or permit was
denied, revoked or suspended; and the reason therefor.
h. All criminal convictions, excluding minor
traffic violations, including date and place of each such
conviction and reason therefor.
i. A complete set of fingerprints taken by the
Police Department.
7. The name and address of the owner and lessor of the
real property upon or in which the business is to be
conducted. In the event the applicant is not the legal owner
of the property, the application must be accompanied by a copy
of the lease and a notarized acknowledgment from the owner of
the property that a massage establishment will be located on
his /her property.
8. Authorization for the City, its agents and employees
to seek verification of the information contained in the
application.
9. Such other information and identification as deemed
necessary by the Chief of Police.
10. 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 and the operator's designated manager(s)
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.
This requirement shall apply to designated managers who are not
otherwise tested and hold an operrator or massage technician permit
under this Chapter.
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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 forty -five (45) days of the filing of an application,
• recommend the City Manager approve, conditionally approve or deny
the application. The forty -five (45) day period may be extended
for up to thirty (30) additional days, if necessary to complete the
investigation. The City Manager shall issue such permit as
requested, unless the City Manager 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,
(a) has been convicted of a violation of California
• Penal Code Sections 266h, 2661, 314, 315, 316, 318,
Subsections (a) , (b) and (g) of Penal Code Section 647 or
650.5, or any other provision of law pursuant to which a
person is required to register under the provisions of
Penal Code Section 290.
(b) has 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) has been convicted of any offense in any other
state which is the equivalent of any of the above-
mentioned offenses.
• (d) has 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.
(e) has engaged in conduct which would constitute
an offense as described in paragraph (a) of this
subsection, within five (5) years immediately prior to
the filing of any application.
(f) has committed an act in another jurisdiction,
• which if committed in this state would have been a
violation of law or, which, if done by a permittee under
this Chapter, would be grounds for denial, suspension or
revocation of the permit.
(g) has 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.
2. The applicant has made a false, misleading or
fraudulent statement 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 requirements of
this Chapter.
B. All operators shall comply with the following conditions
and any other conditions specified by the City Manager on issuance
of the operator's permit:
1. Except to the extent required, in writing, by a
state licensed medical practitioner, no massage technician,
massage technician aide or employee shall massage the genital
or anal area of any patron or the breasts of any female
patron, nor shall any operator of a massage establishment
allow or permit such massage. No massage technician, massage
technician aide or employee, while performing any task or
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service associated with the massage business, shall be present
in any room with another person unless the person's genitals,
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 City
Manager designating the person or persons with power to act as
a manager. The operator, or the manager in the operator's
absence, shall be responsible for ensuring compliance with
this Chapter.
4. The operator and designated manager(s) shall ensure
the massage technician permit for each on -duty massage
• technician is displayed in a conspicuously public place and
that each massage technician is wearing the identification
required by Section 5.50.040(B)(3).
5. No operator shall employ any person as a massage
technician or massage technician aide, who does not have a
valid massage technician permit issued pursuant to this
Chapter. Every operator shall report to the City Manager any
change of employees, whether by new or renewed employment,
discharge or termination. 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 hire or
termination. The operator shall deliver the permit and photo
identification card of any massage technician no longer
employed by the operator to the City Manager.
6. 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 provide complete
covering from mid -thigh to three (3) inches below the collar
bone.
7. Each operator shall provide the City Manager with
evidence of the insurance required by Section 5.50.050 within
forty -five (45) days of the date of issuance of the permit.
8. The operator shall comply with all provisions of
• this Chapter and any applicable provisions of the Newport
Beach Municipal Code.
5.50.030 Massage Technician Permit.
No person shall perform or administer a massage, or advertise
to provide massage services in the City of Newport Beach, unless
such person has in effect a valid massage technician permit issued
pursuant to Sections 5.50.035 and 5.50.040 of this Chapter. A
massage technician, 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 City
Manager who shall refer all such applications to the Chief of
Police for an investigation. The application shall be accompanied
by the appropriate filing fee. The application shall contain 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.
3. The following personal information concerning the
applicant:
a. Name, complete residence address and telephone;
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b. Two (2) previous addresses immediately prior to
the present address of the applicant;
C. Acceptable written proof that the applicant is
at least eighteen (18) years of age;
d. Height, weight, color of hair and eyes, and
• sex;
e. Two (2) front faced portrait photographs at
least two inches (211) by two inches (211) in size;
f. The business, occupation and employment history
of the applicant for the five (5) years immediately
preceding the date of the application;
g. The permit history of the applicant and whether
such person has ever had any license or permit, issued by
any agency, board, City, or other jurisdiction, denied,
revoked or suspended and the reasons therefor.
4. All criminal convictions, excluding minor traffic
violations, including date and place of each such conviction
• and reason therefor.
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 an original or certified copy
of a diploma or certificate and certified 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 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
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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 three hundred (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 City Manager 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 within application. Proof of
completion shall include dates of study and the name, 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 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 provisions of this Chapter.
2. Qualified persons shall prepare the examination. A
qualified person shall have at least five (5) years of
licensing or practice in his or her health care field and
shall include licensed health care professionals, such 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 City Manager shall establish standards and
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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 applicant requires that the examination be
• given in another language, he or she must notify the City
Manager 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 City Manager prior to such
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 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 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. The applicant has been convicted of any of the
following:
(a) a violation of Penal Code Sections 266(h),
266(1), 314, 315, 316, 318, Subsections (a), (b) or (g)
of Penal Code Section 647 or 650.5, or that the applicant
is required to register under the provisions of Penal
Code Section 290,
(b) a violation of Health and Safety Code Section
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11550 or any offense involving the illegal sale,
distribution or possession of a controlled substance
specified in Health and Safety Code Sections 11054,
11055, 11056, 11057 or 11058, or
(c) any offense in any other state is the
• equivalent of any of the above-mentioned offenses.
2. The applicant has engaged in conduct which would
constitute an offense as described in paragraph (a) of
Subsection 1, within five (5) years immediately prior to the
filing of any application.
3. The applicant has committed an act, which, if
committed in this State would have been a violation of law or
which, if done by a permittee under this Chapter, would be
grounds for denial, suspension or revocation of the permit.
4. The applicant has been convicted of an act involving
dishonesty, fraud, deceit or moral turpitude 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 requirements of
this Chapter.
B. All massage technicians shall comply with the following
conditions and any other conditions specified by the City Manager
on issuance of the massage technician's permit.
1. Except to the extent required, in writing, by a
state licensed medical practitioner, no massage technician,
massage technician aide, or employee shall massage the genital
or anal area of any patron or the breast(s) of any female
patron. 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
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another person unless the person's genitals, anus, or, in the
case of female, her breast(s), are fully covered.
2. No massage technician shall massage any patron
unless the person's genitals, anus, or in the case of a
female, her breast(s), are fully covered at all times while
• the technicians, or other employee is present in the same room
as the patron.
3. The massage technician shall wear a photo
identification card prepared and issued by the City while
administering a massage. The identification card shall be
worn on outer clothing with the photo side facing out. If a
massage technician changes his or her business address, he or
she shall, prior to such change, obtain from the City Manager
a new photo identification card and advise the Police
Department, in writing, of the new business address.
4. Massage technicians shall not perform any massage at
any location other than the location specified on the permit,
unless performing an off - premises massage pursuant to permit.
5. While on duty, the massage technician shall not use
any name other than specified on the photo identification
card.
6. Massage attendants shall be fully clothed at all
times. Clothing shall be of a fully opaque, non - transparent
material and provide the complete covering from mid -thigh to
three (3) inches below the collar bone.
7. The massage technician consents to the inspection of
the massage establishment by the City's Building and Safety,
Fire Department and Police Department and the Health
Department for the purpose of determining that the provisions
of this Chapter or other applicable laws or regulations are
met. The massage technician consents to the inspection of the
occupied massage rooms by the Police Department 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(20) which would require the posting of the
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Notice to All Patrons.
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
permit shall be one performed or administered for money or other
• consideration by a licensed massage technician at a location other
than a licensed massage establishment.
B. No person shall perform or administer a massage off the
premises of a massage establishment, for money or other
consideration, without obtaining a massage technician permit under
Sections 5.50.035 and 5.50.040 in conjunction with a valid
operator's permit 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 City
Manager 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 - premises 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. If the off - premises massage is to be conducted
at a commercial business, during normal business hours while
patron remains fully clothed, a letter confirming these
conditions from the commercial business shall accompany the
application.
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 City Manager shall conduct an investigation to
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ascertain whether such permit should be issued as requested.
Within ten (10) days of the filing of an application, the Chief of
Police shall recommend the City Manager conditionally approve or
deny the application. The City Manager shall issue the permit
unless he or she 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 conditions
on the issuance of the off - premises massage permit that are
reasonably necessary to ensure compliance with this Chapter and
other laws.
5.50.050 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 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 shall display the operator's
permit in a conspicuous public place within the massage
establishment.
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) forty (40) watt white light bulb. No
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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
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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.
S. 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
(1811). Two inch (211) thick foam pads with a maximum width of four
feet (41) 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 massage.
. B. Operations.
1. Equipment. Each operator shall provide and maintain
adequate equipment for disinfecting and sterilizing of instruments
used in massage.
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2. Inspections. The operator 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.
•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 necessary, as part of
enforcement efforts by authorized agencies or departments, or as a
result of received complaint(s) . 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(14) 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 massage
technicians.
Inspections of the massage establishment shall be conducted
during business hours.
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
=W.=
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. 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.
• 8. 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 only by officials charged with enforcement of
this Chapter or for no other purpose. The Police Department shall
• periodically inspect the records to ensure compliance with this
Section. 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 other applicable laws and shall remain
confidential. Any unauthorized disclosure or use of such
CWIM
information by any officer or employee of the City of Newport Beach
shall constitute a misdemeanor.
9. 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.
10. 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 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 reasonable suggest to a prospective patron
that any service is available other than those services authorized
• by this Chapter.
11. 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, a
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
$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.
12. Compliance. Proof of compliance with all applicable
provisions of the Newport Beach Municipal Code shall be provided.
13. 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
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only door is an exterior door.
14. Notices. City Manager may require that the following
notice:
NOTICE TO ALL PATRONS
THIS MASSAGE ESTABLISHMENT AND THE MASSAGE
ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND ARE
• SUBJECT TO INSPECTION BY THE NEWPORT BEACH
POLICE DEPARTMENT WITHOUT PRIOR 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 and
5.50.040.
The notice set forth above shall be prepared and issued
by the City Manager.
The notice shall be conspicuously posted in a location
within the massage establishment that is 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.
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.
5.50.055 Changes Of Business.
Every Massage establishment operator shall report immediately
to the City Manager 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 (5%) 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
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may be approved by the City Manager 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, the amendment of 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 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 or 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. Existing operator's and massage technicians permits shall
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continue in effect until expiration and shall be renewed in
accordance with provisions of this Amended Ordinance.
5.50.070 Transfer And Duration Of Permits.
A. No permit issued hereunder shall be transferable to any
other person or establishment, provided, however, an additional
•location or change of location of a massage technician permit will
be allowed prior written notice to the City Manager and payment of
the appropriate transfer fee.
B. All operator, massage technician and off - premises massage
permits shall be issued for the period of twelve (12) months and
shall expire twelve (12) months from its issuance.
C. Applications for the next ensuing permit shall be filed
with the City Manager 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 City Manager 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.
5.50.075 Suspension, Revocation, Denial And Appeal.
A. Violation And Non - Compliance. 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. 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.
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B. Revocation And Suspension Of Operator's Permit.
1. The City Manager may revoke or refuse to renew an
operator's permit if he or she makes any of the findings for
denial of a permit under Section 5.50.025(A) , or upon any
subsequent violation of any provision within one year
• following prior suspension under subsection 2 below, or upon
demonstrated inability, to operate or manage the massage
establishment in a law abiding manner, thus necessitating
action by law enforcement officers;
2. The City Manager may suspend an operator's permit
for a period of thirty (30) days for each violation of Section
5.50.025(B), 5.50.045(B) or 5.50.050.
C. Revocation And Suspension Of Massage Technician Permit.
1. The City Manager may revoke or refuse to renew a
massage technician permit if he or she makes any of the
findings for denial of a permit under Section 5.50.040(A), or
upon any subsequent violation of any provision of this Chapter
• within one year following a suspension under subsection 2
below;
2. The City Manager may suspend a massage technician
permit for a period of thirty (30) days for each violation of
Section 5.50.040(B), 5.50.045(B) or 5.50.050.
D. Notice.
When the City Manager concludes that grounds for denial,
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 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 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.
E. Appeal.
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The right to appeal to the City Council shall terminate upon
the expiration of fifteen (15) days following the receipt of the
Notice.
The City Council of the City of Newport Beach 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 Council
findings and
recommendations to be considered by the City Council. The City
Council 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 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
iswhether acting as a mere helper for the owner, employee or
operator, or whether acting as a participant or worker in any way,
who gives a massage or operates a massage establishment or who
advertises massage services within the City without first obtaining
a permit and paying for a license to do so from the City, or shall
violate any provision of this Chapter, shall be guilty of a
misdemeanor.
B. Any massage establishment operated, conducted or
maintained contrary to the provisions of this Chapter shall be, and
the same is hereby declared to be, unlawful and a public nuisance,
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
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contrary to the provisions of this Chapter.
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 this
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 of
the City, and it shall be effective thirty (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 tthh day of March , 1992, and adopted on the 23rd day of
March , 1922, by the following vote, to wit:
ATTEST:
AYES, COUNCILMEMBERS HEDGES, WATT,
TURNER, SANSONE, HART, COX, PLUMMER
NOES, COUNCILMEMBERS NONE
ABSENT COUNCILMEMBERS NONE
MAYOR
O
4
CITY CLERK
9r /ordin /massa9e.ord
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