HomeMy WebLinkAbout96-28 - Adding Chapter 5.60 to Newport Beach Municipal Code Pertaining to Holistic Health Practitioners•
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ORDINANCE NO. 96 -28
AN ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF NEWPORT BEACH,
CALIFORNIA, ADDING CHAPTER 5.60 TO
NEWPORT BEACH MUNICIPAL CODE
PERTAINING TO HOLISTIC HEALTH
PRACTITIONERS
NOW THEREFORE, the City Council of the City of Newport Beach,
California, HEREBY ORDAINS as follows:
Section 1: Chapter 5.60 of Newport Beach Municipal Code is hereby
added to read as follows:
CHAPTER 5.60
HOLISTIC HEALTH PRACTITIONERS
SECTIONS:
5.60.010 Purpose And Intent
5.60.020 Definitions
5.60.030 Application For Holistic Health Practitioner and Operator
5.60.040 Holistic Health Practitioner and Operator Permit Issuance
5.60.045 Fees
5.60.050 Duration, Renewal And Transfer Of Permits
5.60.060 Exemptions
5.60.070 Holistic Health Practitioner and Operator Requirements Of Operation
5.60.075 Advertising
5.60.080 Suspension, Revocation, Denial And Appeal
5.60.085 Operative Date, Violation And Penalty
5.60.090 Severability
5.60.010 Purpose and Intent.
It is the purpose and intent of this Chapter to provide for the orderly
regulation of the massage services provided by any Holistic Health Practitioner in
the City of Newport Beach by establishing minimum requirements for entry into
the profession, to insure the continued integrity of the profession, to prevent
unqualified individuals from entering the profession, to prevent unscrupulous
individuals from using the profession for goals unrelated to maintaining human
health and wellness, and to protect the public health and welfare of the residents
of the City of Newport Beach.
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 those providing massage services and reasonable conditions to
the operation of the massage establishment.
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There is a significant risk of injury to massage clients by improperly
trained and /or educated massage therapists and this Chapter provides
reasonable safeguards against injury and economic loss.
The regulations and restrictions contained in this Chapter tend to
discourage massage establishments from degenerating into houses of
prostitution and the means utilized in this Chapter bear a reasonable and rational
relationship to the goals sought to be achieved.
• Nothing in this Chapter is intended to preclude Holistic Health
Practitioners from engaging in other non - medical health services, such as
nutritional assistance or counseling, as long as the services are otherwise
permitted under city, state and federal law.
Nothing in this Chapter is intended to limit the Holistic Health Practitioner's
scope of practice. It is intended to regulate imassage services provided as part
of the practice.
5.60.020 Definitions.
A. For purposes of this Chapter "Holistic Health Practitioner" means a
non - medical health care therapist who uses any method of pressure on, or
friction against, stroking, kneading, rubbing, tapping, pounding, vibrating, or
stimulating the external parts of the human body, excluding the genitalia, with the
hands or other parts of the body, with or without the aid of any mechanical or
electrical apparatus or appliances, rubbing alcohol, liniments, antiseptics, oils,
powder, creams, lotions, ointments or other similar substances, and has fulfilled
the requirements of Section 5.60.030.
• B. The "Holistic Health Practitioner Operator" designation includes all
of Section A, above, as well as the owner and operator requirements and duties
of managing and supervising the business.
C. "Holistic Health Practitioner Establishment" means any business
that is owned and operated by one or more Holistic Health Practitioner for the
purpose of offering non - medical health care described in section 5.60.020 A of
this Chapter.
D. "Specified anatomical areas" means the human genitals, as
defined in Taber's Cyclopedic Medical Dictionary, anus; perineum; and the
areola and nipple of the female breast.
E. "Conviction" or "convicted" means any plea or verdict of guilty or a
conviction following a plea of nolo contendere.
F. The City's test is administered by the Newport Beach Police
Department and is inclusive of the annual Municipal Code test and the 1,000
hour massage proficiency test given on a one -time basis. This exam is designed
for practitioners to demonstrate their mastery of basic knowledge areas common
• to the profession.
5.60.030 Application for Holistic Health Practitioner and Operator
Permit.
A. No person shall operate or practice as a Holistic Health
Establishment within the City without first obtaining a Holistic Health Practitioner
Operator Permit pursuant to Sections 5.60.030 and 5.60.040 of this Chapter,
securing the necessary business license as required by this Code, and
complying with Title 20 of this Code.
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B. Any person desiring a permit for Holistic Health Practitioner or
Operator shall file a written application on the required forms with the Chief of
Police who shall conduct an investigation. The application shall be accompanied
by the appropriate filing fee established by Resolution of the City Council and
shall include all of the following:
(1) Proof of membership in good standing in a state and or nationally
chartered organization devoted to a massage specialty approach which meets
• the following requirements:
(a) Is recognized by its peers as a bonafide organization and
requires its members to meet minimum educational
requirements.
(b) Promotes, provides and requires continuing education
programs.
(c) Has an established code of ethics and has an enforcement
mechanism with procedures for the suspension and
revocation of membership of persons violating the code of
ethics.
(c) Maintains a membership which reflects substantial statewide
and or national participation by persons engaged in the
Holistic Health profession, and is approved by the City.
(2) Copy of diploma and transcripts from an approved school wherein
the method, profession, anatomical and physiological knowledge and practice of
massage 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 which school has for its purpose
teaching of the theory, the method, profession or work of a massage specialty
with a therapeutic approach used in caring for clients and which school requires
a resident course of study of not less than one thousand (1,000) hours. Not less
than five hundred (500) hours of the one thousand (1,000) hours of schooling
shall be gained from one (1) school and taken over a period of no less than six
(6) months. The applicant must also supply a course description, an outline of
material covered, transcripts and a letter to the City from the school administrator
verifying completion. The instructor of each class listed on the official school
transcripts must be licensed by the State of California to teach that specific
subject.
(3) The applicant must also pass a written examination administered
by the Police Department prior to the issuance of the Holistic Health Practitioner
and /or Operator Permit.
(a) 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 include,
is but is not limited to, the following subjects: anatomy,
physiology, pathology, contraindications, hygiene, sanitation,
massage theory, ethics of massage practice, pathology, first
aid and CPR, and the provisions of this Chapter.
(b) 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, massage therapist,
massage therapist instructors, and individuals who have
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pursued required courses in and graduated from an
approved massage school and received a diploma from the
massage school for a minimum of 1,000 hours.
(c) The Chief of Police shall establish standards and
procedures governing the administration and grading of all
examinations and shall exercise such supervision as may by
necessary to ensure compliance therewith.
(d) The examination will be in the English language. In the
event that the applicant requires that the examination be
given in another language, the applicant must, on their own,
make arrangements with a Court certified and Newport
Beach Police Department approved interpreter to interpret
the examination. Proof of valid certification must be
provided to the Chief of Police or his or her designee prior to
the administration of the examination.
(e) 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
second 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 such
examination in accordance with the fee resolution.
(4) 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 one - thousand (1,000) hour course of study in massage practice,
anatomy, physiology, is provided with the application and can be verified. 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.
(5) The following personal information concerning the applicant;
(a) Name and complete residence address.
(b) Each residence address of the applicant for the ten (10)
years immediately preceding the date of the application, and
the inclusive dates of each such address.
(c) Acceptable proof that the applicant is at least eighteen (18)
years of age.
(d) Date of birth, height, weight, color of hair, eyes and sex.
• (e) One (1) front faced portrait photograph at least two inches
(2 ") by two inches (2 ") in size.
(f) The applicant's business, occupation and employment
history for ten (10) years preceding the date of application,
including, but not limited to, the massage or similar business
history and experience of the applicant.
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(g) The permit history of the applicant; whether such person has
ever applied for or had any permit or license issued by any
agency, board, city, county, territory or state; the date of
issuance of such permits or licenses, whether the permits or
licenses were denied, revoked or suspended; or if vocational
or professional licenses or permits were denied, revoked or
suspended; and the reasons therefore.
• (h) All criminal convictions, including those dismissed pursuant
to Penal Code Section 1203.4, and the dates and places of
the convictions.
(i) A complete set of fingerprints taken by the Newport Beach
Police Department.
(6) Proof of malpractice insurance not less than $100,000. Proof of
annual renewal must be submitted to the Police Department upon expiration
date.
(7) Upon renewal only, a certificate or diploma verifying completion of
thirty -six (36) hours, twelve (12) hours annually, of formal classes of health -
related body therapy subjects, which may include ethics and standards of
practice, from accredited and verifiable programs.
(8) Authorization for the City, its agents and employees to seek
verification of the information contained in the application.
(9) Such other identification and information as the Chief of Police may
• require in order to discover the truth of the matters herein specified, and as
required to be set forth in the application.
(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. In the case of Holistic Health OPERATORS ONLY, the
following information shall also be provided;
(11) A statement of the type of ownership of the business, (i.e., whether
by individual, partnership, corporation or otherwise). If the applicant is a
corporation, the name of the corporation shall be set forth, exactly as shown in
its articles of incorporation or charter, together with the state and date of
incorporation and the names and residence addresses of each of its current
officers and directors, and of each stockholder holding more than five percent
(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.
(12) The precise name under which the Holistic Health Practitioner
Establishment is to be conducted.
(13) The complete address and all telephone numbers of the Holistic
• Health Practitioner Establishment.
(14) A complete list of the names and residence addresses of all
proposed Massage Technicians in the Holistic; Health Practitioner Establishment
(15) 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.
(16) The name and address of the owner and lessor of thereat property
upon or in which the business is to be conducted.
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5.60.040 Holistic Health Practitioner and Operator Permit Issuance.
A. The Chief of Police shall have a reasonable time, not to exceed
sixty (60) days from the date of the application, in which to investigate the
application and background of the applicant with an additional thirty (30) days, if
necessary, to complete the investigation.
B. Except as otherwise provided in this Chapter, upon completion of
• the investigation, the Chief of Police shall approve the application and issue the
permit unless:
(1) The applicant failed to timely furnish all of the information
required by this Chapter.
(2) The applicant knowingly made a false or misleading
statement of a material fact or omission of a material fact in
the application for the permit.
(3) The applicant has been convicted of any of the following
offenses: Sections 266a, b, c, d, e, f, g, h, i, j, k; 315; 316;
318; or subdivision (a), (b) or (g) of section 647 of the
California Penal Code; or when the prosecution accepted a
plea of guilty or nolo contendere 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.
(4) The applicant has been convicted of any felony offense
• involving the sale of a controlled substance specified in
Sections 11054, 11055, 11056, 11057, 11058 or 11550 of
the California Health and Safety Code.
(5) The applicant has been convicted of any felony offense
involving the use of force or violence upon the person of
another.
(6) The applicant has been convicted of any felony offense
involving theft, embezzlement, fraud, dishonesty, deceit or
moral turpitude.
(7) The applicant has been convicted of any offense in another
State which, if committed in this State, would have been
punishable as one or more of the offenses in this Section.
(8) The applicant 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.
• (9) The applicant has engaged in conduct which would
constitute an offense as described in paragraph B (3) and B
(4) of this subsection, within five (5) years immediately prior
to the filing of the application.
(10) The applicant has been convicted of an offense which
requires registration as a sex offender under Penal Code
Section 290.
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(11) The Holistic Health Practitioner business as proposed by the
applicant would not comply with all applicable laws, including
but not limited to, health, zoning, fire and safety
requirements and standards.
(12) The applicant is under eighteen (18) years of age.
(13) All applicable and required fees have not been paid.
• (14) The applicant has failed to meet the minimum requirements
of this Chapter.
5.60.045 Fees.
The City Council shall establish by Resolution, and from time to time, may
amend the fees for the administration of this Chapter. Fees required by this
Chapter, shall be in addition to any required under any other Chapter of this
Code.
5.60.050 Duration, Renewal and Transfer of Permits.
A. The Holistic Health Practitioner and Operator Permits are valid for
three (3) years. Applications for the next ensuing permit shall be filed with the
Chief of Police before the expiration of the existing permit. Such renewal
applications must be filed no later than sixty (60) days prior to the expiration of
the permit to prevent a lapse of the permit. At the time of renewal, the permittee
must provide proof of the following:
• (1) Thirty -six (36) hours of continuing education in health or
massage therapy;
(2) Membership in good standing in a State and or nationally
chartered organization as defined in Section 5.60.030131;
and
(3) Proof of malpractice liability insurance in an amount, not less
than $100,000.
B. No permit issued hereunder shall be transferable to any other
person or establishment.
C. All Holistic Health Practitioners must provide written notice, to the
Chief of Police, of all Holistic Health Practitioner business locations or the
addition of any new locations.
D. A Holistic Health Practitioner shall notify the Chief of Police, in
writing, prior to a change of location.
E. A nominal non - refundable change of location fee will be paid to the
• Chief of Police. Failure to notify the Chief of Police in writing, prior to a change
of location shall result in the permit being null and void.
F. Evidence of renewed malpractice liability insurance shall be
provided annually., within fifteen (15) days of its expiration date.
5.60.060 Exemptions.
A. The requirements of this Chapter shall have no application and no
affect upon and shall not be construed as applying to any persons designated,
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as follows: physician, surgeon, chiropractor, osteopath, physical therapist or any
registered or licensed vocational nurse working under the direct supervision of,
and on the premises of a physician, surgeon, chiropractor or osteopath duly
licensed to practice their respective professions in the State of California.
B. Commencing on the effective date of this Chapter, all permits are
to be issued in accordance with the provisions of this Chapter.
• C. Existing Holistic Health Practitioner and/or Operator permits shall
continue in effect until expiration and shall be renewed in accordance with the
provisions of this Chapter. All persons holding existing Holistic Health
Practitioner and /or Operator permits shall have eighteen (18) months from the
effective date of this Chapter, to comply with the one - thousand (1;000) hour
requirement and test only. If an existing Holistic Health Practitioner and or
Operator's permit expires prior to the eighteen (18) month interim period, the
permit will be renewed pursuant to the Chapter 5.50 that was effective
immediately prior to the adoption of this Chapter and will expire eighteen (18)
months from the effective date of Chapter 5.60.
5.60.070 Holistic Health Practitioner Requirements of Operation.
A. No person, association, partnership, or corporation shall engage in,
conduct or carry on, or permit to be engaged in, conducted or carried on as a
Holistic Health Practitioner or as the owner of a Holistic Health Practitioner
business unless the following requirements are met:
(1) Each person employed as a Holistic Health Practitioner shall
have a valid permit issued pursuant to the provisions of
• Chapter 5.60. Any Holistic Health Practitioner Operator that
chooses to employ a Massage Technician shall also
comply with the requirements of Chapter 5.50 of this Code.
(2) The Holistic Health Practitioner shall not hire any Massage
Technician unless the Massage Technician has a valid
permit. The Holistic Health Practitioner shall not hire a
Massage Technician to provide off - premise massage
services unless the Massage Technician has a valid permit
for off - premise massage.
(3) The Holistic Health Practitioner shall ensure that all
Massage Technicians employed by the Holistic Health
Practitioner comply with Chapter 5.50 of this Code.
(4) Every Holistic Health Practitioner, Operator and Massage
Technician shall post their permits in a conspicuous place on
the business premises.
(5) No Holistic Health Practitioner or employee shall, during the
course of any service or task associated with the operation
• of the business, permit any person to massage, or
intentionally touch the specified anatomical areas of another
person.
(6) No Holistic Health Practitioner or employee while performing
any task or service associated with the business, shall be
present in any room with another person unless the person's
specified anatomical areas are fully covered.
(7) No person shall engage in, conduct or carry on the business
of a Holistic Health Practitioner, Operator or Massage
Technician unless, there is on file with the Police
Department, 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.
• (8) The Holistic Health Practitioner business owner shall ensure
that all employees comply with the regulations of this Code,
and all applicable State and federal laws.
(9) Any business or person providing massage services and not
having a permit under this Section, must comply with
Chapter 5.50, of the Newport Beach Municipal Code unless
the business or person is exempt under Section 5.60.060.
B. At any Holistic Health Practitioner establishment where a Massage
Technician is also employed, police officers may make reasonable and periodic
inspections during hours of business operation, in those portions of the business
where massage services are provided. This shall be in accordance with Chapter
5.50 where inspections pursuant to Section 5.50.050 B (2) may be conducted to
insure compliance with Chapter 5.50.
5.60.075 Advertising.
A. Each practitioner licensed under the provisions of this Chapter shall
• include the number of their Holistic Health Practitioner Permit in any
advertisement of services appearing in any newspaper, telephone directory, or
other printed advertising medium.
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B. Each practitioner shall operate under the name or designation on
the Holistic Health Permit.
5.60.080 Suspension, Revocation, Denial and Appeal.
A. Violation and Non - Compliance The Chief of Police 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.
B. Revocation Suspension or Denial of Renewal of Holistic Health
Practitioner Permit.
(1) The Chief of Police may revoke or refuse to renew a Holistic
Health Practitioner and Operator permit if he or she makes
any of the findings for denial of a permit under Section
5.60.040, 5.60.070A(5), or upon any subsequent violation
of any provision within one (1) year following prior
suspension under subsection 2 below, or upon
demonstrated inability, to operate or manage the Holistic
Health Establishment in a law abiding manner, thus
necessitating action by law enforcement officers;
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(2) The Chief of Police may suspend a Holistic Health
Practitioner and Operator Permit for a period of thirty (30)
days for each violation of Section 5.60.070.
(3) The Chief of Police may also take action to suspend, revoke
or deny renewal of a Holistic Health Practitioner Operator
permit when actions by employees violate specified
Sections, in accordance with Section 5.50 and 5.60.
• C. Notice. When the Chief of Police concludes that grounds for denial,
suspension, revocation or refusal to renew a permit exist, the Chief of Police
shall serve the applicant or permit holder, either personally or by certified mail,
addressed to the business or residence of applicant or permit holder listed on the
application, 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 Chief of Police.
D. Appeal. The right to appeal to the City Council shall terminate upon
the expiration of fifteen (15) days following the date 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 a
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.
5.60.085 Operative Date, Violation and Penalty.
A. Except as otherwise provided, any person, association, partnership
or corporation engaging in, conducting, or carrying on as a Holistic Health
Practitioner or in the operation of a Holistic Health Practitioner business on the
effective date of this Chapter, shall comply with all of the provisions of this
Chapter within sixty (60) days of the effective date of this Chapter.
B. 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 a massage or operates a Holistic Health Establishment or who
advertises Holistic Health 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.
5.60.090 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 effect 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 or the Ordinance would be subsequently declared invalid or
unconstitutional.
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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 22nd day of July ,
19 96 and adopted on the 12tH day of August 1996, by the following
• vote, to wit:
AYES, COUNCILMEMBERS HEDGES, DEBAY,
GLOVER, EDWARDS, WATT, O'NEIL, COX
NOES, COUNCILMEMBERS NONE
•
C7
ATTEST:
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ABSENT COUNCILMEMBERS NONE
MAYOR W —)
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