City Council Meeting:
July 14, 2009
ORDINANCE NUMBER (CCS)
(City Council Series)
AN
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SANTA MONICA AMENDING CHAPTER 6.104 OF THE SANTA MONICA MUNICIPAL CODE RELATING
TO MASSAGE REGULATIONS
WHEREAS, on May 27, 2008, the City of Santa Monica adopted Ordinance Number 2265
amending Chapter 6.104 of the Santa Monica Municipal Code relating to massage
regulations; and
WHEREAS,
thereafter, the State of
WHEREAS, Senate Bill No. 731
limits the City’s ability to require State certified massage technicians to
obtain an additional license, permit, or other City authorization; and
WHEREAS, Senate Bill No. 731
also limits the City’s ability to apply certain regulations to State certified
massage technicians and certain massage establishments; and
WHEREAS, the City seeks to
conform its massage regulations to the requirements of Senate Bill No. 731,
while still exercising local control to the maximum extent allowed by State
law;
NOW,
THEREFORE, THE CITY COUNCIL OF THE CITY OF
Section 6.104.005. Applicability
of Chapter.
Except as specifically provided
in this section, this Chapter shall apply to all Massage Establishments and to
all Massage Technicians. Nothing
contained in this Chapter shall require any person with a Massage Technician
Permit to obtain State Certification, and any Massage Technician may renew his
or her Massage Technician Permit in accordance with this Chapter without
obtaining State Certification.
(a)
No Certified Massage
Technician shall be required to obtain a Massage Technician Permit under
section 6.104.050 of this Chapter or to comply with sections 6.104.060,
6.104.070, or 6.104.080 of this Chapter.
(b)
No Certified Massage
Establishment shall be required to comply with subsection (2) of section
6.104.040 or subsections (c), (f), or (h) of section 6.104.090 of this
Chapter.
(c)
No Certified Sole
Proprietorship shall be required to obtain an Operator’s Permit under section
6.104.020 of this Chapter or to comply with sections 6.104.030, 6.104.040,
6.104.080, or to comply with subsections (c) or (f) of section 6.104.090 of
this Chapter.
(d)
The provisions of this
Chapter shall not apply to any person who is a state licensed physician,
surgeon, osteopath, physical therapist, or occupational therapist, or to any
registered nurse working on the premises of and under the direct supervision of
a state licensed physician, surgeon, or osteopath.
The following words and phrases
as used in this Chapter shall have the following meanings:
(a)
Certified Massage
Establishment. Any Massage Establishment that employs or
uses any only Certified Massage Technicians to perform Massage services.
(b)
Certified Massage
Technician. Any Massage Technician who has a valid,
current State Certification, and who is practicing consistent with the
qualifications established by his or her State Certification.
(c)
Certified Sole
Proprietorship. Any Sole Proprietorship where the owner has
State Certification and is the only person employed by that business to provide
Massage services.
(d)
Massage. Any method of pressure on or friction against, or
stroking, kneading, rubbing, tapping, pounding, or stimulating the external
parts of the body with the hands or other parts of the body, with or without
the aid of any mechanical or electrical apparatus or appliances, or with or
without supplementary aids such as rubbing alcohol, liniments, antiseptics,
oils, powder, creams, lotions, ointments, or other similar preparations
commonly used in this practice.
(e)
Massage
Establishment. Any business where any
individual, firm, association, partnership, corporation, or combination of
individuals, engages in, conducts, carries on, or permits to be engaged in or
conducted, for money or any other consideration, Massage or health treatments
involving Massages including, but not limited to, those businesses that provide
Massage accessory to their principal permitted use, such as aromatherapy,
beauty salon, health club, beach club, skin care salon, acupuncture,
chiropractic office or day spa. Unless
otherwise specified in this Chapter, any reference to Massage Establishment
shall include Certified Massage Establishment.
(f)
Massage Technician. Any person who administers a Massage to another person in
exchange for money or any other consideration.
(g)
Massage Technician
Permit.
The permit required to administer Massage for money or any other
consideration.
(h)
Off-Premises
Massage.
A Massage conducted for money or any other consideration at a location
other than a Massage Establishment.
(i)
Off-Premises
Massage Technician. Any person who administers Off-Premises
Massage to another person in exchange for money or other consideration.
(j)
Operator. A person or entity
who holds an Operator’s Permit for a Massage Establishment.
(k)
Operator’s Permit. The permit required to operate a Massage Establishment.
(l)
Responsible
Employee. Any person designated by the Operator to
conduct day-to-day operations of the Massage Establishment, provided such
person holds an Operator’s Permit or a Massage Technician Permit, or is a
Certified Massage Technician.
(m)
Sole Proprietorship. Any business where
the owner is the only person employed by that business to provide Massage
services.
(n)
State Certification. Certification
issued pursuant to Chapter 10.5 of the California Business and Professions
Code.
Section 6.104.015.
Business license required.
(a) Operators. Every
Operator of a Massage Establishment shall obtain a business license pursuant to
Chapter 6.04 of this Code.
(b) Massage Technicians. Every
Massage Technician who is an independent contractor as defined in section
6.04.010(e) of this Code or any Sole Proprietorship shall obtain a business
license pursuant to Chapter 6.04 of this Code.
Section 6.104.020. Operator’s Permit required.
Except
as provided for in Section 6.104.170, no person shall operate a Massage
Establishment within the City without first obtaining an Operator’s Permit
pursuant to the provisions of this Chapter and complying with all other
applicable local and state laws, including, but not limited to, laws
establishing land use restrictions and all red light abatement provisions set
forth in Penal Code Sections 11225 through 11235 regarding the operation of a
Massage Establishment.
Section 6.104.030. Application and examination for
Operator’s Permit.
Any person may apply for an
Operator’s Permit for a Massage Establishment by filing a written application
with the Finance Department of the City on a form prepared by the Chief of
Police, paying the filing fees established by the City, and passing a written
examination administered by the City. The application shall be completed and
signed by the owner of the proposed Massage Establishment, if a Sole
Proprietorship; one general partner, if the owner is a partnership or LLP; one
officer or one director, if the owner is a corporation or LLC; one participant,
if the owner is a joint venture; or one trustee if the owner is a trust. The
application shall be deemed complete if it contains or is accompanied by the
following:
(a)
A description of the type of ownership of the business.
(1) Sole
Proprietorship. If the applicant is a
Sole Proprietorship, the applicant shall state his or her name and address of
residence on the application.
(2) Partnership. If the applicant is a partnership of any
kind, the applicant shall set forth the name and address of residence of each
of the partners, including limited partners, on the application. If the applicant is a limited partnership,
the applicant shall also attach to the application a copy of its certificate of
limited partnership filed with the Secretary of State. If one or more of the
partners is a corporation, the provisions of this section pertaining to
corporations shall apply in addition to this subsection.
(3) Corporation. If the applicant is a corporation, the name
of the corporation shall be set forth exactly as shown in its articles of
incorporation, together with the state and date of incorporation, the names and
residence addresses of each of the corporation’s current officers and
directors, and of each stockholder holding more than five percent (5%) of the
stock of that corporation, and the name and address of the corporation’s
current agent for service of process.
(4) Designated
officer or partner. An applicant
corporation or partnership shall designate one officer or general partner to
act as the responsible managing officer and that person shall complete and sign
all forms required of an individual applicant by this Chapter. The responsible
managing officer may be different from the Responsible Employee.
(b)
A statement containing the precise name under which the Massage
Establishment will be conducted and the complete address and all telephone
numbers of the Massage Establishment.
(c)
A complete list of the names and current residence addresses of all
proposed Massage Technicians, other employees, and other persons working in the
Massage Establishment, with a description of the job duties or function of each
person.
(d)
The name and current residence addresses of the Responsible Employee
proposed to be principally in charge of the operation of the Massage
Establishment, if that person is different from the Operator.
(e)
The following personal information and identification concerning the
applicant, if the applicant is an individual, or the responsible managing
officer, if the applicant is an entity:
(1)
Name and complete residence address;
(2)
Two immediately prior residence addresses;
(3)
Date of birth;
(4)
Height, weight, color of hair and eyes, and gender;
(5)
The Massage or similar business history and experience of the applicant,
including but not limited to, whether or not such person, in previously
operating a Massage Establishment or similar business in this City or any other
city or state under license or permit, has had such license or permit denied,
revoked, or suspended, and the reasons therefor;
(6)
All criminal convictions including pleas of nolo contendere within the
last ten years, including those which have been dismissed or expunged under the
provisions of Section 1203.4 of the Penal Code, but excluding infraction
violations, and the date of each such conviction or plea and the sentence
therefor;
(7)
A valid
(8)
Two front-faced portrait photographs at least two inches by two inches
in size taken by the Police Department;
(9)
A complete set of fingerprints taken by the Police Department;
(10) The name and address of the owner and
lessor of the real property upon which or in which the Massage Establishment is
to be conducted. In the event that the applicant is not the legal owner of the
real property, the application must be accompanied by a copy of the lease and a
notarized acknowledgement from the owner of the real property that a Massage
Establishment will be located on the real property;
(11) A site plan depicting the building
and unit proposed for the Massage Establishment and a dimensional interior
floor plan depicting how the Massage Establishment will comply with this
Chapter and other applicable laws, including all health, zoning, fire and
safety requirements and standards;
(12) Such other information and
identification as is reasonably deemed necessary by the Chief of Police to
fulfill the purposes of this Chapter; and
(13) A statement in writing by the
applicant authorizing the City, its agents and employees to seek verification
of the information contained in the application and attesting that the
applicant certifies under penalty of perjury that all information contained in
the application is true and correct.
Prior to the issuance of an
Operator’s Permit, the applicant, or responsible managing officer if the
applicant is a corporation or partnership, must pass a written examination
given by the City. The examination shall be given on a monthly basis and shall
test the applicant or responsible managing officer on the requirements of this
Chapter to ensure substantial understanding of the Operator’s and the
Responsible Employee’s duties. An applicant or responsible managing officer who
fails the examination may retake it; however, an applicant who fails the
examination three times shall be ineligible to re-take the examination for one
year after the third failed examination. An additional fee may be imposed by
the City for each re-examination.
Section
6.104.040. Conditions of issuance of
Operator’s Permit.
The Chief of Police shall
condition the issuance of any Operator’s Permit to ensure compliance with this
Chapter and other applicable laws, including all health, zoning, fire and
safety requirements and standards. Such conditions shall include, but not be
limited to, the following:
(1)
All doors shall be
kept unlocked during business hours.
(2)
No Massage may be
given within any cubicle, room, booth or any area within the Massage
Establishment which is fitted with a door capable of being locked, unless that
door is an exterior door. No electronic
locking device may be utilized on any interior door.
(3)
Except to the extent required
by written prescription issued and signed by a physician licensed in the State
of California, no Massage Technician or employee shall Massage the genitals,
gluteal fold, or anal area of any patron, or the breasts of any female patron,
nor shall any Operator or Responsible Employee of a Massage Establishment allow
or permit such Massage.
(4)
No Operator or
Responsible Employee, while performing any task or service associated with the
Massage Establishment, shall be present in any room with another person unless
the person’s genitals, gluteal fold, anus, or, in the case of a female, her
breast(s), are fully covered.
(5)
No person or entity
granted an Operator’s Permit shall use any name or conduct business under any
designation other than that specified in the Operator’s Permit, and no business
shall be conducted other than the business authorized by the Operator’s
Permit.
(6)
All Massage
Establishments shall have an Operator or Responsible Employee on the premises
at all times the Massage Establishment is open.
The Operator of each Massage Establishment shall file a statement with
the Finance Department designating the person or persons with power to act as a
Responsible Employee. The Operator or
the Responsible Employee shall post, on a daily basis, the name of each on-duty
Responsible Employee and each on-duty Massage Technician in a conspicuous
public place in the lobby of the Massage Establishment. The Operator and the Responsible Employee
shall be responsible for ensuring compliance with this Chapter.
(7)
No Massage
Establishment shall be open for business without having a valid Operator’s
Permit.
(8)
At least one Massage
Technician holding a current valid Massage Technician Permit for that specific
Massage Establishment, or at least one State Certified Massage Technician,
shall be on the premises and on duty at all times when the Massage
Establishment is open.
(9)
The Operator or the
Responsible Employee shall ensure that the Operator’s Permit for the Massage
Establishment and the Massage Technician Permit or State Certification for each
on-duty Massage Technician are conspicuously displayed in a public place in the
lobby of the Massage Establishment.
(10)
The Operator or the
Responsible Employee shall ensure that each Massage Technician, other than a
Certified Massage Technician, is wearing or has in his or her possession the
photo identification card required by Section 6.104.070 at all times when in
the Massage Establishment. The photo
identification card shall be presented to the representatives of the City,
including a police officer, upon request.
(11)
The Operator or the
Responsible Employee shall be responsible for the conduct of all employees,
including Massage Technicians, while such employees are at the Massage
Establishment. All persons found working
in the Massage Establishment shall be considered employees of the Operator,
including independent contractors and unpaid volunteers. Any act or omission of such person that
constitutes a violation of the provisions of this Chapter shall be deemed to be
the act or omission of the Operator for purposes of determining whether the
Operator’s Permit shall be revoked, suspended, denied or renewed.
(12)
No Operator or
Responsible Employee shall employ any person as a Massage Technician who does
not have, prior to such employment, a valid Massage Technician Permit for the
specific Massage Establishment at which the Massage Technician is to perform
Massage service, unless that person is a Certified Massage Technician.
(13)
Every Operator or
Responsible Employee shall report to the Finance Department any change of
personnel at the Massage Establishment, including any change of Massage
Technicians, whether by new or renewed employment, discharge or termination on
the form and in the manner required by the Finance Department. The form shall include space to provide the
name of the employee and the date of hire, rehire, discharge or
termination. The form shall be submitted
to Finance Department within three (3) working days of the date of hire,
rehire, discharge or termination.
(14)
The Operator or the
Responsible Employee of a Massage Establishment shall deliver the Massage
Technician Permit and photo identification card of any Massage Technician no
longer employed at the Massage Establishment to the Finance Department within
three (3) working days of the date of discharge or termination of the Massage
Technician, except if the discharged or terminated person is a Certified
Massage Technician.
(15)
All persons, including
the Operator, Responsible Employee, Massage Technicians and all other persons
working in the Massage Establishment, shall be fully clothed at all times and
shall wear clean outer garments.
Clothing shall be of a fully opaque, non-transparent material and shall
provide complete covering of the genitals, genital area, buttocks and female
breasts of such persons, Massage Technicians and other persons working in the
Massage Establishment.
(16)
The Operator or the
Responsible Employee shall maintain a register of all employees, including all
Massage Technicians and all other persons working in the Massage Establishment,
showing the name, nicknames and aliases used by such person, home address, age,
birth date, gender, height, weight, color of hair and eyes, telephone numbers,
social security number, date of employment and termination, if any, and duties
of each employee. By the tenth day of
each quarter, the Operator or the Responsible Employee shall file with the Finance
Department a copy of the register showing all persons who worked on the
premises during the preceding quarter.
The above information on each employee shall be maintained in the
register on the premises for a period of two (2) years following termination of
the employee. The Operator or the
Responsible Employee shall make the register of employees available to
representatives of the City, including a police officer, upon request.
(17)
Each Operator shall
provide the Finance Department with evidence of the insurance required by
Section 6.104.090 prior to the date of issuance of the Operator’s Permit.
(18)
The Operator and the
Responsible Employee shall comply with all provisions of this Chapter and all
other applicable laws, including, but not limited to, all red light abatement
provisions set forth in Penal Code Sections 11225 through 11235, or any
successor statute.
Section 6.104.050.
Massage Technician Permit required.
Except
as provided in Section 6.104.005(a), no person shall perform Massage in a
Massage Establishment or Off-Premises Massage for money or any other consideration,
unless such person has in effect a valid Massage Technician Permit.
Section 6.104.060. Application and examination for Massage
Technician Permit.
6.104.070. Conditions of issuance of Massage Technician
Permit.
The Chief of Police shall condition the
issuance of any Massage Technician Permit to ensure compliance with this
Chapter and other applicable laws. Such conditions shall include, but not be
limited to, the following:
(a)
That the Massage Technician must be wearing or have in his or her
possession the photo identification card prepared by the Police Department when
working pursuant to the Massage Technician Permit. The photo identification
card shall be promptly presented to the representatives of the City, including
a police officer, upon request. If a Massage Technician intends to change his
or her business address, he or she shall be required, prior to such change
occurring, to obtain from the Police Department a new photo identification card
showing the new business address of the Massage Technician.
(b)
That if the applicant is authorized to conduct Off-Premises Massage,
that Off-Premises Massage shall not be conducted in a hotel, motel, or other
commercial establishment except in the office of the customer.
(c)
That when working pursuant to the Massage Technician Permit, the Massage
Technician may not expose his or her genitals or buttocks, or, in the case of a
female, her breast(s), or make intentional contact or occasional and repetitive
contact with the genitals or anus of another person.
(d)
No Massage Technician employed by a Massage Establishment may engage in
any Off-Premises Massage without applying for and being issued a separate Massage Technician Permit to engage in
Off-Premises Massage.
6.104.080. Processing Operator’s Permit and Massage
Technician Permit applications; and the issuing of permits.
The Chief of Police shall exercise his or
her discretion to approve, conditionally approve, or deny any application under
this Chapter within sixty days after it is deemed complete. The sixty day
period for processing may be extended for up to an additional thirty days if
necessary to complete an investigation of the applicant, the application or the
proposed location. The Chief of Police shall issue the permit unless he or she
makes any of the following findings:
(a)
The applicant has, within five years prior to the application date:
(1)
Been convicted of or pled to a violation of Health and Safety Code
Section 11550, or a violation of Penal Code Section 266h, 266i, 314, 315, 316,
318, 647(a) or 647(b), or a violation of any provision of this Chapter, or any
previous Chapter to which this is the successor Chapter;
(2)
Been convicted of or pled to any felony offense involving the sale of a
controlled substance specified in Health and Safety Code Section 11054, 11055,
11056, 11057, or 11058; or of any felony offense which substantially relates to
the applicant’s qualifications, functions or duties under this Chapter;
(3)
Been required to register under the provisions of Penal Code Section
290;
(4)
Been convicted of or pled to any offense in any other state which is the
equivalent of any of the offenses specified above;
(5)
Been convicted of or pled to a lesser offense as a result of a plea
negotiation in a case where the applicant was originally charged with any of
the crimes listed in this subsection (a);
(6)
Been subjected to a permanent injunction against the conducting or
maintaining. of a nuisance pursuant to Sections 11225 through 11235 of the
Penal Code, or any similar provisions of law in a jurisdiction outside the
State of California.
(b)
The applicant has, within three years prior to the application date:
(1)
Committed an act, which, if done by an Operator or a Massage Technician
permittedunder this Chapter, would be grounds for suspension or revocation of
the permit pursuant to section 6.104.120 of this Code;
(2)
Committed an act involving dishonesty, fraud, or deceit with the intent
to substantially benefit himself, herself, or another or substantially to
injure another, or an act of violence, which act or acts are substantially
related to the qualifications, functions, or duties governed by this Chapter.
(c)
The Massage Establishment as proposed by the applicant does not comply
with all applicable laws, including, but not limited to, health, zoning,
nuisance, fire and safety requirements and standards.
(d)
The applicant has knowingly made a false, misleading, or fraudulent
statement of fact to the City on his or her application.
(e)
The application does not contain the information required by this
Chapter.
(f)
The applicant has not satisfied the requirements of this Chapter.
The requirements of this
Section are reasonable health and safety requirements for Massage
Establishments and Massage Technicians and shall apply to all Massage
Establishments and Massage Technicians in the City, unless otherwise specified.
(a)
All Massage
Establishments shall have an Operator or Responsible Employee on the premises
at all times when the Massage Establishment is open.
(b)
No person shall give,
or assist in the giving, of any Massage to any person under the age of eighteen
(18) years, unless the parent or guardian of such minor person has consented
thereto in writing.
(c)
The Operator or the
Responsible Employee shall erect and maintain a recognizable and readable sign
adjacent to the main entrance identifying the premises as a Massage
Establishment. The sign may not use any strobe lights or other flashing lights
to illuminate the front of the business.
This subsection shall not apply to any Certified Massage Establishment.
(d)
The Operator or the
Responsible Employee shall also post and maintain a list of services available
and the cost of each. No Operator or
Responsible Employee shall permit, and no Massage Technician shall offer or
perform, any service other than those posted and for the cost of the service as
posted.
(e)
The Operator and the
Responsible Employee shall be responsible for the conduct of all employees,
including Massage Technicians, while such employees are at the Massage
Establishment. All persons found working
in the Massage Establishment shall be considered employees of the Operator,
including independent contractors and unpaid volunteers. Any act or omission of such person that
constitutes a violation of the provisions of this Chapter shall be deemed to be
the act or omission of the Operator for purposes of determining whether the
Operator’s Permit shall be revoked, suspended, denied or renewed.
(f)
The Operator or the
Responsible Employee shall provide in each room where Massages are given
sufficient lighting and ventilation as required by the Building Code. Lighting in each Massage room shall be at
least one 40 watt white light bulb which shall be activated at all times while
a patron is in the room. No strobe
lights, colored lights, or colored light coverings shall be used. This subsection shall not apply to any
Certified Massage Establishment.
(g)
From time to time and
during business hours, City and County health and safety personnel, including a
police officer, may inspect the premises for the purpose of determining
compliance with state and local laws. An
Operator, Responsible Employee, a Massage Technician or any other employee or
agent thereof, including a Certified Massage Technician, shall allow such
inspections; and it is a violation of this Chapter if he or she refuses to
permit or interferes with a lawful inspection.
(h)
A minimum of one tub
or shower and one toilet and washbasin shall be provided for the patrons in
every Massage Establishment. If male and female patrons are to be served
simultaneously, and if steam rooms or saunas are provided, a separate steam
room or sauna shall be provided for male and female patrons. Hot and cold
running water under pressure shall be provided to all wash basins, bathtubs,
showers, and similar equipment. Each wash basin shall be provided with soap or
detergent and sanitary towels placed in permanently installed dispensers. A
trash receptacle shall be provided in each toilet room. In addition to the wash
basin provided for patrons, a minimum of one separate wash basin shall be
provided in each Massage Establishment, which wash basin shall provide soap or
detergent and hot running water at all times and shall be located within or as
close as practically possible to the area devoted to the performing of Massage
services. If the wash basin for patrons is not in the toilet room but it is
adjacent thereto, this wash basin shall meet the separate wash basin
requirement if it is reasonably close to the area devoted to performing
Massages. This subsection shall not apply to any Certified Massage
Establishment.
(i)
In a Certified Massage
Establishment, no Massage may be given within any cubicle, room, booth or any
area any behind any locked door, unless there is no staff available to assure
security for clients and massage staff who are behind closed doors. All other Massage Establishments shall comply
with the requirements of section 6.104.040(2) relating to locked doors.
(j)
No person shall
operate a Massage Establishment or work as an Off Premises Massage Technician
or administer a Massage as herein defined for money or any other consideration
between the hours of 10:30 p.m. and 7:00 a.m.
(k)
No person shall
operate a Massage Establishment under any name or conduct business or perform
Massage services under any designation or location not specified in his or her
Operator’s Permit, Massage Technician Permit or State Certification, as
applicable.
(l)
No person shall enter,
be, or remain in any part of a Massage Establishment while in possession of,
consuming, using, or under the influence of any alcoholic beverage or
controlled substance. The owner, Operator, and Responsible Employee shall each
be responsible for ensuring that no such person shall enter or remain in a
Massage Establishment.
(m) No person, while conducting business as an Off-Premises
Massage Technician, shall be in possession of, or under the influence of, any
alcoholic beverage or controlled substances.
(n)
No building or part
thereof used as a Massage Establishment and no location at which an
Off-Premises Massage Technician works shall be equipped with any electronic,
mechanical, or artificial device used, or capable of being used, for recording
or videotaping, for monitoring the activities, conversation, or other sounds in
the treatment room or any room used by the business patrons; nor shall any such
equipment be used to record, videotape or monitor a person receiving a Massage
without that person’s written consent in advance.
(o)
No Operator or
Responsible Employee of any Massage Establishment shall send a Massage
Technician off the premises for the purpose of administering a Massage, nor
shall the Massage Establishment or any part thereof be used by any employee,
Operator, Responsible Employee, or owner to receive or accept such requests for
Off-Premises Massages, except when such Off-Premises Massage is permitted by
this Chapter. No person holding a
Massage Technician Permit to conduct Off-Premises Massage shall conduct
Massage, whether or not for compensation, at a hotel, motel, or any other
commercial establishment except in the office of the customer.
(p)
Every Massage
Technician shall, while working in a Massage Establishment, display his or her
Massage Technician Permit or State Certification in a conspicuous place within
the Massage Establishment so that it may be readily seen by persons entering
the premises.
(q)
All persons working in
a Massage Establishment shall be fully clothed at all times, and such clothing
shall be of a fully opaque, non-transparent material. No Massage Technician shall perform any
Massage or associated task while exposing his or her genitals, buttocks, or, in
the case of a female, her breast(s).
(r)
Except to the extent
required by written prescription issued and signed by a physician licensed in
the State of California, no Massage Technician shall Massage the genitals,
buttocks, gluteal fold, or anal area of any patron, or the breasts of any
female patron, nor shall any Operator or Responsible Employee of a Massage
Establishment allow or permit such Massage.
No Massage Technician shall make intentional contact or occasional and
repetitive contact with the genitals, buttocks, gluteal fold, or anus of any
patron, or the breasts of any female patron.
(s)
All persons, including
the Operator, the Responsible Employee, the Massage Technicians and all other
persons working in Massage Establishments shall be fully clothed at all times
and shall wear clean outer garments. Clothing shall be of a fully opaque,
non-transparent material and shall provide complete covering of the genitals,
genital area, buttocks and female breasts of such persons, Massage Technicians,
and other persons working in the Massage Establishment.
(t)
Each Massage
Establishment shall provide to all patrons, clean, sanitary and opaque
coverings capable of covering the patrons’ genitals, genital area, buttocks and
female breasts. No common use of such coverings shall be permitted and re-use
is prohibited unless coverings are adequately cleaned between uses.
(u)
No Massage Technician
shall perform any Massage or associated task in any room with another person
unless that person’s genitals, genital area, buttocks and female breasts are
fully covered.
(v)
Standard or portable
Massage tables with durable, washable plastic or other waterproof material as
covering shall be used for Massage. Foam pads more than four inches thick or
with a width of more than four feet may not be used. Beds, mattresses, and
water beds may not be used in the administration of a Massage.
(w) The Operator of each Massage Establishment shall file a
statement with the Finance Department designating the person or persons with
power to act as a Responsible Employee.
The Operator or the on-duty Responsible Employee shall post, on a daily
basis, the name of each Responsible
Employee and each Massage Technician in a conspicuous public place in the lobby
of the Massage Establishment. The
Operator or the Responsible Employee shall be responsible for ensuring
compliance with this Chapter.
(x)
Every Operator shall
report to the City any change of employees, including any change of Massage
Technicians, whether by new or renewed employment, discharge or termination, on
the form and in the manner required by the Finance Department. The report shall contain the name of the
employee and the date of hire, rehire, discharge or termination. The report shall be made within three (3)
working days of the date of hire, rehire, discharge or termination.
(y)
Every Operator shall,
on or before the fifth (5th) working day of each calendar month,
report to the City a full list of all employees, independent contractors,
volunteers, or other persons, including Massage Technicians, working or
providing any service at the Massage Establishment. Such report shall include a statement by the
Operator or Responsible Employee that each person performing Massage services
at the Massage Establishment has a Massage Technician Permit or State
Certification.
(z)
Every Operator of a
Massage Establishment employing any Certified Massage Technician shall file a
copy of the State Certification for each Certified Massage Technician with the Finance
Department and the Police Department.
(aa)
Every Certified
Massage Technician required to obtain a business license pursuant to section
6.104.015(b) shall file a copy of his or her State Certification with the Finance
Department and the Police Department.
(bb)
Every person operating
a Massage Establishment and each person doing business as a Massage Technician
shall keep a record of the dates and hours of each treatment or service, name,
address and birth date of the patron which shall be verified by the patron showing
legal identification prior to the provision of service, the name of the Massage
Technician administering such service and a description of the treatment or
service rendered. These records shall be open to inspection by the health
officials charged with the responsibility of preventing the spread of
communicable and contagious diseases and to officials, including a police
officer, charged with the enforcement of the provisions of this Chapter. The
information furnished or secured as a result of any such records shall be used
only to ensure and enforce compliance with this Chapter and other applicable
laws and shall otherwise remain confidential. Officials charged with
enforcement of this Chapter shall periodically inspect the records to ensure
compliance with this Chapter. The records shall be maintained for a period of
not less than one (1) year.
(cc)
All Operators and all
Massage Technicians shall keep on file with the Finance 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 Permit
holder 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 in the case of the Massage Establishment, or the
administration of a Massage, in the case of the Massage Technician.
(dd)
Any Operator that is
not the legal owner of the real property upon which or in which the Massage
Establishment is located shall keep on file with the Finance Department the
name and address of the owner of such real property. Such an Operator must also keep on file with
the Finance Department a copy of the lease and a notarized acknowledgement from
the owner of the real property. Any
change in ownership of the real property or in the lease terms shall be filed
with the Finance Department with thirty (30) days of such change.
(ee)
All Massage
Establishments must comply with all state and federal laws and regulations for
disabled customers. No Massage
Establishment, Operator, Responsible Employee or Massage Technician may
discriminate or exclude patrons on the basis of race, nationality, gender,
sexual orientation, religion, age, or disability.
(ff)
The Chief of Police
may require that the following notice be posted in the event that any employee
of the Massage Establishment or any person who has been aided and abetted by an
employee of the Massage Establishment has been found, after hearing by
administrative proceeding or by court conviction or plea, to have violated any
provisions listed in this Chapter:
NOTICE TO ALL PATRONS
THIS MASSAGE ESTABLISHMENT AND
THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION
BY THE SANTA MONICA POLICE DEPARTMENT AND CODE ENFORCEMENT DIVISION WITHOUT
PRIOR NOTICE.
Section 6.104.100.
Changes of Operators.
An Operator or Responsible
Employee shall report immediately to the Chief of Police any and all changes of
ownership or management of the Massage Establishment including, but not limited
to, changes of Operator, Responsible Employee, manager or other person
principally in charge, stockholders holding more than five percent (5%) of the
stock of the corporation, officers, directors, and partners; and 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
Establishment.
6.104.110. No transfer of permits—Duration and renewal of
permits.
(a)
No Massage Technician Permit or Operator’s Permit shall be sold or
transferred. Any such attempted sale, assignment or transfer shall be deemed to
constitute a voluntary surrender of such permit and such permit shall
thereafter be null and void.
(b)
All Operator’s Permits and Massage Technician Permits shall be issued
for a period of no more than one year, provided that the Massage Technician or
Operator continues to meet the requirements of this Chapter.
(c)
Applications for Massage Technician Permit or Operator’s Permit renewal
at the end of each fiscal year shall be filed with the Chief of Police at least
thirty days prior to the expiration of the Massage Technician Permit or
Operator’s Permit.
(d)
Each applicant for renewal shall file such information, including but
not limited to proof of insurance, as may be required by the Chief of Police to
update the information required for his or her original application. Each
Massage Technician 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 day period preceding the application and has
found the renewal applicant to be free from all communicable diseases.
6.104.120. Suspension, revocation, denial and appeal.
(a)
The Chief of Police may deny an application, refuse to renew a Massage
Technician Permit or Operator’s Permit, or revoke or suspend an existing
Massage Technician Permit or Operator’s Permit on the grounds that the
applicant or permit holder has allowed violations of the permit conditions or
otherwise failed to comply with the requirements of this Chapter. In any such
case, the applicant or permit holder shall have the right to appeal from a
decision of the Chief of Police in accordance with the hearing procedures
established by Chapter 6.16 of this Code.
(b)
No suspended Massage Technician Permit or Operator’s Permit may be
renewed during the term of the suspension. If a suspended Massage Technician
Permit or Operator’s Permit lapses during the suspension period, a new
application may be approved, to be effective only upon the expiration of the
period of suspension.
(c)
When the Chief of Police concludes that grounds exist to deny an
application or to suspend, revoke or refuse to renew a Massage Technician
Permit or Operator’s Permit, the Chief of Police shall direct service upon the
applicant, or Massage Technician or Operator, by certified mail, return receipt
requested, addressed to the business and residence address of the applicant, or
Massage Technician or Operator, of a notice of denial or notice of intent to
suspend, revoke or refuse to renew Massage Technician Permit or Operator’s
Permit. This notice shall state the reasons for the proposed action, the
effective date of the decision, the right of the applicant, or Massage
Technician or Operator, to appeal the decision to a hearing examiner, the right
to submit contrary evidence along with the appeal, and that the decision will
be final if no appeal is filed within the time allowed.
(d)
The right to appeal shall terminate upon expiration of fifteen days from
the date of mailing of the notice. Any decision of the Chief of Police,
pursuant to this Chapter, shall be deemed final and conclusive unless a written
notice of appeal is filed with the City Clerk prior to the expiration of the
fifteen day appeal period. In the event an appeal is timely filed, any
suspension or revocation shall be stayed until a final decision has been
rendered by the hearing examiner. If no appeal is filed, the suspension or
revocation shall become effective upon expiration of the period for filing the
appeal. The hearing shall be concluded within sixty days of the date of the
filing of the appeal. The hearing examiner shall render his or her decision within
sixty days from the date of the conclusion of the hearing, unless otherwise
agreed by the parties. The decision of the hearing examiner shall be final. The
applicant shall be entitled to notice of the basis for the proposed action, a
copy of the documents upon which the decision of the Chief of Police was based
and the opportunity to present contrary evidence to the Chief of Police prior
to the hearing and to the hearing examiner at the hearing. Notice of the date,
time and place of the hearing shall be mailed at least ten days prior to the
date of the hearing, by certified mail, return receipt requested, with proof of
service attached, addressed to the address listed on the Operator application,
or Massage Technician application, as the case may be.
(e)
No Massage Technician Permit or Operator’s Permit granted herein shall
confer any vested right to any person or business for more than the permit
period. All Operators, Responsible Employees and Massage Technicians shall
comply with the provisions of this Chapter as they may be amended hereafter.
6.104.150. Fees.
The City Council shall establish, and from
time to time amend by resolution, fees for the administration and enforcement
of this Chapter.
6.104.160. Variance procedure.
Any other provision of this Chapter notwithstanding,
an Operator or a person applying for an Operator’s Permit may file with the
Chief of Police a request for a variance to be relieved of the requirements set
forth in Section 6.104.090(h) of this Chapter. The decision of the Chief of
Police to grant or to deny a request for a variance shall be final. The Chief of Police may grant such requests
only if he or she is satisfied that all of the following conditions are met:
(a)
Although within the statutory definition of a Massage Establishment, the
Operator’s premises are devoted primarily to the conduct of a business other
than that of Massage.
(b)
The Operator would suffer unusual hardship if forced to comply with the
requirements set forth in Section 6.104.090(h) of this Chapter.
(c)
The bathing and toilet facilities provided by the operator in lieu of
those required by Section 6.104.090(h) comply with the applicable requirements
of State and local law and are adequate to protect the public health, safety,
and welfare.
6.104.170. Massage schools.
A Massage school duly accredited by the
State of California may obtain an Operator’s Permit under this Chapter and may
employ Massage Technicians to provide Massage so long as the principal business
activity is providing education and instruction.
6.104.180. Location of massage establishments.
A Massage Establishment in compliance with
the provisions of this Chapter, or any Certified Massage Establishment, shall
be considered a permitted use in any zoning district in the City, where general
retail use is permitted.
6.104.190. Violation and penalty.
(a)
Violations of this Chapter shall constitute a misdemeanor and shall be
punishable in the manner provided in Section 1.08.010.
(b)
Notwithstanding the foregoing, any Massage Establishment operated, conducted
or maintained contrary to the provisions of this Chapter may be, and the same
is hereby declared to be, unlawful as defined in Section 1.08.010 of this Code
and a public nuisance as defined in Penal Code Section 11225 and in Penal Code
Section 373(a). The City may, in addition to or in lieu of prosecuting a
criminal action hereunder pursue any available civil remedy, including, but not
limited to an action or proceeding, for the abatement, removal and enjoinment
of the operation of the Massage Establishment and for reimbursement of the
costs of such abatement, removal and enjoinment.
APPROVED AS TO FORM:
_________________________
MARSHA JONES MOUTRIE
City Attorney