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HomeMy WebLinkAbout96-28 - Adding Chapter 5.60 to Newport Beach Municipal Code Pertaining to Holistic Health Practitioners• • • 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. 1 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. +4 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 3 • 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. 11 (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. 5 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. 0 (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, 7 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. • 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; W (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. 10 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: I ABSENT COUNCILMEMBERS NONE MAYOR W —) F:\cat\debbie \ord inan \cholist.doc 09 -05 -96 11