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HomeMy WebLinkAboutOrd 1156-1995ORDINANCE NO. 1156-95 AN ORDINANCE AMENDING CHAPTER 10.16 OF THE SOUTH SAN FRANCISCO MUNICIPAL CODE REGULATIONS FOR MASSAGE ESTABLISHMENTS, MASSAGE SERVICES THE CITY COUNCIL OF THE CITY OF SOUTH SAN FRANCISCO DOES ORDAIN AS FOLLOWS: SECTION 1. Chapter 10.16 of the South San Francisco Municipal Code is hereby amended to read: Chapter 10.16 "Regulations for Massage Establishments, Massage Services" Sections: 10.16.010 10.16.020 10.16.030 10.16.040 10.16.050 10.16.060 10.16.070 10.16.080 10.16.090 10.16.100 10.16.110 10.16.120 10.16.130 10.16.140 10.16.150 10.16.160 10.16.170 10.16.180 10.16.190 10.16.200 10.16.210 10.16.220 10.16.230 10.16.240 10.16.250 10.16.260 Purpose Definitions Permits Required Location of Massage Establishments Business Tax Requirement Permit Not Required Massage Establishment, Massage Service Permit Application Massage Establishment Operating Requirements Massage Establishment Facilities Regulations Inspection by Officials Permits Nonassignable Change of Location or Name Massage Practitioner Permit Required Massage Practitioner Permit Application Renewal of Permits New Massage Practitioners - Notification Application of Regulations to Existing Businesses Prohibited Conduct Suspension or Revocation of Permits Appeal Procedures Burden of Proof Public Nuisance Declared - Abatement and Injunctions Adult Entertainment Business Hot Tub, Sauna, Bath House Establishment and Operations Requirements Violations - Penalties Severability CENTRAL RECOR'~ ,.,,.a ,o. 10.16.010 Purpose In enacting these regulations, the city council recognizes that massage is a viable professional field offering the public valuable health and therapeutic services. It is the purpose and intent of the city council that the operation of massage establishments, off-premise massage services, and persons offering massage be regulated in the interests of public health, safety and welfare by providing minimum building sanitation and health standards and to ensure that persons offering massage shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered. It is the intent of this ordinance to enact regulations to ensure that those offering massage services are qualified and trained and can be expected to conduct their work in a lawful and professional manner. The city council finds that existing controls do not satisfactorily address or regulate serious police problems and regulate the profession so as to discourage the use of the profession for objectionable and unlawful purposes. 10.16.020 Definitions Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this chapter: (a) "Applicant" shall mean the permit applicant and each of the following persons from the business entity or massage establishment seeking the permit: the managing responsible officer/employee, a general partner, a limited partner who owns or controls 20% or more of the business, a shareholder who owns or controls 20% or more of the shares. (b) "Employee" means any and all persons, other than a massage practitioner, employed by the massage establishment who may render any service to the permittee, and who receives compensation from the massage establishment and who have no physical contact with the customers or clients. The term "employee" shall include independent contractors who are regularly employed by the massage establishment and who work at the massage establishment. (c) "Massage" and "massage services" means any method of treating the external parts of the body for remedial, health, or hygienic purposes for any form of consideration (whether for the massage, as part of a membership, as part of other services or a product, or otherwise) by means of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, or stimulating the external parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances; or with or CENTRAL RECORDS, without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in this practice; or by baths, including but not limited to Turkish, Russian, Swedish, Japanese, vapor, shower, electric tub, sponge, mineral fomentation, or any other type of bath. (d) "Massage Establishment" means any business entity or social organization having a fixed place of business where any person, firm, association, partnership or corporation engages in, conducts, or carries on, or permits to be engaged in, conducted or carried on, any massage. (e) "Massage Practitioner", "Massage Technician", "Massage Trainee", "Masseur", "Masseuse" means any person who administers massage to another person, for any form of consideration (whether for the massage, as part of other services or a product, or otherwise). (f) "Off-premise Massage Service, Outcall Activity" means any business where a function of such business is to engage in or carry on massage, not at a fixed location or massage establishment but at a location designated by the customer, massage practitioner, or other person. (g) "Recognized school of massage" means any school or institution of learning which has been approved by the police department and approved pursuant to California Education Code Section 94300 et seq. or other applicable state law or regulations, or any public school which requires a resident course of study consistent with section 10.16.140(d) (2) of not less than two hundred (200) hours in length within at least three (3) months on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology and hygiene, and at least seventy-five (75) hours of demonstration and practice of massage techniques, and which provides a diploma or certificate of graduation upon successful completion of such course of study. Schools offering a correspondence course not requiring attendance shall not be deemed a recognized school. The City of South San Francisco shall have the right to confirm that the applicant has actually attended class in a recognized school. (h) "Working directly under the supervision of" shall mean that the person is an employee or independent contractor of the licensed person, is working at the same location as the licensed person, and has his/her work checked by the licensed person. 10.16.030 Permits Required--Massage Practitioner Establishment; Massage (a) Massage Establishment - Use Permit Required CENTRAL RECORI3~ (1) Except as provided in Section 10.16.060 and 10.16.030(a) (2), it shall be unlawful for any person, association, partnership or corporation to engage in, conduct or carry on, or permit to be engaged in, conducted or carried on in or upon any premises within the City of South San Francisco a business or social organization wherein a function or part thereof is the operation of a massage establishment or massage service without first having obtained a conditional use permit approved by the City of South San Francisco pursuant to the provisions hereinafter set forth and as required by title 20 of this code. (2) Massage services based outside the city of South San Francisco that conduct off-premise massage service or outcall activity within the City of South San Francisco are exempt from obtaining a conditional use permit but shall comply with all other provisions of this code. (b) Massage Establishment - Permit Process (1) Every person desiring to establish or operate a massage establishment in this city shall make a written application for a conditional use permit as required by Title 20 of this code. In addition to the fees required by Title 20, such application shall be accompanied by a nonrefundable background investigation processing fee as set by resolution of the city council. (2) Upon receipt of application for a conditional use permit to operate a massage establishment, the director of planning shall cause the application to be processed as a conditional use permit in accordance with the provisions of Title 20 of this code. In addition, the director of planning shall forward the application to the chief of police, who shall conduct the investigation, provided for herein, of the applicant and persons financially interested in the massage establishment business. (3) The chief of police shall report to the planning commission regarding the results of the investigation conducted pursuant to section 10.16.030(b) (1) and shall include in his report to the planning commission a recommendation to deny or approve the conditional use permit and specific reasons for that recommendation. The report shall be considered by the planning commission in reaching a decision to issue or not to issue a conditional use permit. (4) If the applicant decides to terminate the conditional use permit process after or as a result of the police department background investigation, and prior to planning commission hearing, the unused portion of the conditional use permit fee may be refunded. 10.16.040 Location of Massage Establishments (a) It is unlawful to establish any massage establishments as CENTRAL RECORD~ defined in this chapter in any district in violation of Title 20 of this code. (b) It is unlawful to establish any massage establishment as defined in this chapter as a home occupation as such term is defined in Title 20 or as a home occupation outcall service. (c) It is unlawful to establish any massage establishment within 500 feet of any other massage establishment. 10.16.050 Business Tax Requirement (a) It shall be unlawful for any person to open or operate a massage establishment or massage service without obtaining and maintaining in effect a city business license. (b) A massage establishment or massage technician shall pay the required business license tax for such business and occupation. 10.16.060 Permit Not Required - Exemptions The provisions of this chapter shall not apply to the following classes of individuals or businesses while engaged in the performance of their duties: (a) Physicians, surgeons, chiropractors, osteopaths, nurses or any physical therapists who are duly licensed to practice their respective professions in the State of California and persons working directly under the supervision of such licensed persons. (b) Barbers and beauticians who are duly licensed under the laws of the State of California while engaging in practices within the scope of their licenses. (c) Hospitals, nursing homes, sanitariums, or any other similar health facilities duly licensed by the State of California. (d) Accredited high schools, junior colleges, medical schools, schools of chiropractic, and colleges or universities whose coaches, trainers, or medical or chiropractic students are acting within the scope of their employment or instruction. (e) Massage practitioners who perform massages which are clearly incidental to the operation of a personal fitness training center, gymnasium, athletic facility or health club, when the giving of massage for compensation is not a principal function of such businesses. In determining whether massage constitutes a principal or incidental function of personal fitness training centers, gymnasiums, athletic facilities or health clubs, the police chief shall consider the percent of income derived from massages, the amount of floor space devoted to and the number of employees assigned to massage services, as well as the manner in which the business advertises and holds itself out to the public. CENTRAL- RECORI3~' (f) The Chief of Police or his authorized representative shall, pursuant to this section, determine whether a particular individual or business is entitled to exemption and, the decision of the police chief regarding whether a particular individual or business is entitled to exemption may be appealed to the city manager and then to the city council through the procedures set forth in this code. 10.16.070 Massage Establishment, Massage Service Permit Application (a) Any person, association, corporation, or partnership desiring to obtain a permit to operate a massage establishment or massage service shall make application to the planning division and the chief of police or his authorized representative. Prior to submitting such application, a non-refundable fee for each massage establishment or massage service applicant and massage practitioner working at the establishment, as set forth in the master fee schedule, shall be paid to defray in part the cost of the investigation and report required by this chapter. A copy of the receipt shall accompany the application. (b) The application fee required under this section shall be in addition to any license, permit, proficiency testing costs or other fee required under any other section of this chapter or other chapter of this code. Applicants who will need the services of a language interpreter for their written and/or practical examination shall also pay a fee to cover the cost of these services if their own acceptable language interpreter services are not provided. (c) The application for permit does not authorize a massage establishment to operate until such permit has been granted. (d) Each applicant for a massage establishment permit shall submit the following information under penalty of perjury: (1) The full true name under which the business will be conducted. (2) The present or proposed address where the business is to be conducted consistent with restrictions of Title 20 of this code. (3) The applicant's full, true name, and other names used, date of birth, California driver's license number or California identification number, social security number, present residence address, telephone number, sex, height, weight, color of hair, and color of eyes. Such other identification and information shall be provided as required by the chief of police or his representative, necessary to discover the truth of the matters specified and required in the application. (4) Previous two (2) residences of the applicant and the inclusive dates at each address. CENTRAL REC~ ,...£ NO. (5) The applicant's business, occupation, and employment history for five (5) years preceding the date of application, and the inclusive dates of same. (6) The permit history of the applicant, whether such person has ever had any permit or license issued by any agency, board, city, county, territory, or state; the date of issuance of such a permit or license, whether the permit or license was revoked or suspended; or if a vocational or professional license or permit was issued, revoked, or suspended and the reason thereof. (7) All convictions for any crime involving conduct which requires registration under California Penal Code Section 290, or convictions of California Penal Code Sections 314, 415, 316, 318, 647(a), (b), (as now written or as amended), or convictions of crimes designated in Government Code Section 51032(b) (as now written or as amended), or any crime involving dishonesty, fraud, deceit, violence or moral turpitude. Convictions under the laws of other states or countries which proscribe the same conduct or similar conduct as the afore-designated California crimes shall be provided. All injunctions for nuisances under Penal Code Section 11225 or other similar laws must also be reported. Whether the applicant, including applicant as a member of a corporation or partnership, has ever operated or been employed at any business which has been the subject of an abatement proceeding under the California Red Light Abatement Act (California Penal Code Sections 11225 through 11325 as now written or as amended) or any similar laws in other jurisdictions. If the applicant has previously worked at such a business, he/she should state on the application the name and address of the business, the dates on which the applicant was employed at such business, the name and location of the court in which the abatement action occurred, the applicable case number and the outcome of the abatement action. (8) Any criminal charges pending against the applicant at the time of the application, other than traffic citations, and the name and location of the court in which the criminal charges are pending and the applicable case numbers. (9) A complete description of all services to be provided. (10) The name, address, and date of birth of each massage practitioner or employee who is or will be employed in the massage establishment. (11) The name and address of any massage business or other like establishment owned or operated by any person whose name is required to be given pursuant to this section. (12) Written proof that the applicant and all practitioners are at least eighteen (18) years of age. (13) If the applicant is a corporation, the name of the CENTRAL RE. COR~ 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 (5%) percent of the stock of that corporation. (14) If the applicant is a partnership, the application shall set forth the names and residence address of each of the partners, including limited partners. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership as filed with the county clerk. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporate applicants shall apply to the corporate partner. (15) The applicant, association, corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer/employee. Such person shall complete and sign all application forms required of an individual applicant under this chapter. The association's corporation's or the partnership's responsible managing officer must, at all times meet all of the requirements set for permittees by this chapter or the corporation partnership permit shall be suspended until a responsible managing officer who meets such requirements is designated. If no such person is found within ninety (90) days, the association, corporation, or partnership permit is deemed canceled and a new application for permit must be filed. (16) The chief of police or authorized representative shall require the applicant to furnish fingerprints when needed for the purpose of establishing identification. Fingerprinting will be taken at a place designated by the Chief of Police. Any required fingerprinting fee will be the responsibility of the applicant. (17) Two (2) passport type photographs of the applicant and all practitioners and managing responsible officer to be provided by the applicant. (18) A description of any other business to be operated on the same premises, or on adjoining premises, wherein such businesses are owned or controlled by the applicant. (19) The name and address of the owner and lessor of the real property upon or in which the business is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease or other rental agreement and a notarized acknowledgement from the owner of the property that a massage establishment will be located on his/her property and that the lessor/owner has authorized such a use. (20) Authorization for the City of South San Francisco, its agents and employees, to seek information and conduct an 8 CENTRAL RECORI3,~ ,=',LE .0. investigation into the truth of the statements set forth in the application and into the background of the applicant and the responsible managing officer. (21) Proof of massage malpractice insurance in the sum of not less than $100,000 per massage practitioner licensed, or to be licensed at the massage establishment up to a maximum of $500,000; this requirement can be satisfied by malpractice insurance being provided in the name of individual massage practitioners. (22) The applicant shall submit any change of address or fact which may occur during the procedure of applying for massage establishment permit. (23) A certificate of compliance from the health officer for San Mateo County which certifies that the premises of the massage establishment meet all applicable codes and regulations must be submitted prior to application approval. Any required inspection fees shall be the responsibility of the applicant. (24) Other related information requested by the police chief in order to evaluate the background and qualifications of the applicant for the permit or certificate sought. (e) The Chief of Police or authorized representative shall have up to sixty (60) days, after submission of a complete application consisting of all required information including the required certificates of compliance, to investigate the application and the background of the applicant. Upon the completion of the investigation the Chief of Police shall report to the planning commission regarding the results of the investigation conducted with a recommendation to deny or approve the conditional use permit with or without conditions. A recommendation of approval shall only be made if the chief finds in the exercise of discretion all of the following: (1) That all required fees have been paid. (2) The application conforms in all provisions of this chapter and to other laws. respects to the (3) The applicant has not made a material misrepresentation in the application. (4) The applicant, if an individual, or any of the stockholders of the corporation, or any officers or director, if the applicant is a corporation; or a partner if the applicant is a partnership, or the managing responsible officer of each of these or an association has not been convicted within 5 years preceding application in a court of competent jurisdiction of an offense involving conduct which requires registration under California Penal Code Section 290, or of conduct which is a violation of the 9 CENTRAL provisions of California Penal Code Sections 314, 315, 316, 318, 647(a), (b), (as now written or as amended), or of crimes that are designated in Government Code Section 51032(b) (as now written or as amended), or any other crime involving dishonesty, fraud, deceit, violence or moral turpitude; or that an injunction has not been issued under Penal Code Section 11225. Convictions under the laws of other states or countries which proscribe the same or similar conduct as the afore-designated California crimes shall be considered. (5) Within 5 years preceding application, the applicant or managing responsible officer/employee has not had a massage establishment, massage practitioner, or other similar permit or license revoked, or suspended by the City of South San Francisco or any other state or local agency; or engaged in conduct or operated a massage or similar establishment in a manner that would be grounds for revocation of a permit under this chapter; or owned or managed a massage or similar establishment where persons required to be licensed were allowed to work without the required licenses. (6) The applicant and all practitioners are at least eighteen (18) years of age. (7) The permit as requested by the applicant would comply with all applicable laws, including, but not limited to health, zoning, fire, security, safety and building requirements and standards. (f) Upon receipt of an application for a massage establishment permit and/or massage practitioner permit, the police chief shall review the application and supplementary material. If it is clear from the face of the application and supplementary materials that the applicant is not qualified for a massage establishment permit, managing employee permit or massage practitioner permit, pursuant to the provisions of this chapter, the application may be denied without further investigation or testing. If it appears from the face of the application and supplementary material that the applicant may be eligible for the permit or certificate sought, the police chief shall verify the information submitted by the applicant and shall further investigate the qualifications of the applicant. (g) No new application, or change of ownership application will be accepted or processed for a specific business during judicial, quasi-judicial or administrative proceedings or hearings on the same business. (h) If the Chief of Police or authorized representative, following investigation of the applicant, in the exercise of his discretion, fails to make the findings stated in (e), the chief shall make a recommendation of denial of the conditional use permit to the planning commission and shall provide written notice to the 10 C£NT~AL ~E:CORD$ applicant setting forth the reason for such denial recommendation. 10.16.080 Massage Establishment Operating Requirements No person, association, corporation, or partnership may engage in, conduct, carry on, or permit to be engaged in, conducted, or carried on, any massage establishment or service, unless each and all of the following requirements are met: (a) Each person employed or acting as a massage practitioner shall have a valid permit issued by the Chief of Police which shall be clearly visible on the massage practitioner's person during working hours. It shall be unlawful for any owner, manager, operator, responsible managing officer/employee, or permittee to employ or permit a person to act as a massage practitioner who is not in possession of his or her valid massage practitioner permit issued pursuant to this chapter. (b) The possession of a valid massage establishment permit does not authorize the possessor or any other person to perform work for which a massage practitioner permit is required. (c) Massage shall be provided or given only between the hours of 7:00 am and 10:30 pm. No massage establishment shall be open and no customer shall be in the massage establishment between 10:31 pm and 7:00 am. (d) A list of services available and the cost of such services shall be posted in an open public place within the premises, and shall be described in readily understandable language. No owner, manager, operator, responsible managing employee, or permittee shall permit, and no massage practitioner shall offer or perform, any service other than those posted. (e) The massage establishment permit and a copy of the permit of each and every massage practitioner employed in the establishment shall be displayed in an open and conspicuous place on the premises. (f) Every massage establishment and service shall keep a written record of the date and hour of each service provided, the name and address of each patron and the service received, and the name of the massage practitioner administering the service. Such records shall be open to inspection only by officials, including the police department, county health department, and the city attorney, charged with enforcement of this chapter; these records may not be used for any other purpose than as records of service provided and may not be provided to other parties by the massage establishment or service. Such records shall be retained on the premises of the massage establishment for a minimum period of two (2) years following the date service was rendered. 11 CENTRAL. R EC'ORD~ .o. (g) Massage establishments shall at all times be equipped with an adequate supply of clean sanitary towels, coverings and linens. Clean towels, coverings and linens shall be stored in enclosed cabinets. Towels and linens shall not be used on more than one (1) patron, unless they have first been laundered and disinfected. Disposable towels and coverings shall not be used on more than one (1) patron. Soiled linens and paper towels shall be deposited in separate, approved receptacles. (h) Wet and dry heat rooms, steam or vapor rooms or cabinets, toilet rooms, shower and bathrooms, tanning booths, whirlpool baths and pools shall be thoroughly cleaned and disinfected as needed, at least once each day the premises are open, with a disinfectant approved by the health officer of the County of San Mateo. Bathtubs shall be thoroughly cleaned with a disinfectant approved by the health officer after each use. All walls, ceilings, floors, and other physical facilities for the establishment must be in good repair, and maintained in a clean and sanitary condition. (i) Instruments utilized in performing massage shall not be used on more than one (1) patron unless they have been sterilized, using approved sterilization methods. (j) Ail employees, including massage practitioners, shall wear clean, nontransparent outer garments. Said garments shall not expose their genitals, pubic areas, buttocks, or chest. (k) No person shall enter, be or remain in any part of a massage establishment while in possession of an open container of alcohol, or consuming or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs. The owner, operator, responsible managing employee, manager, or permittee shall not permit any such person to enter or remain upon such premises. A sign explaining these restrictions shall be posted in a conspicuous place on the premises. (1) No massage establishment shall operate as a school of massage or use the same facilities as that of a school of massage. (m) No massage establishment or massage service granted a permit under the provisions of this chapter shall place, publish or distribute or cause to be placed, published or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers that any service is available other than those services described in section 10.16.020 of this chapter, nor shall any massage establishment or massage service employ language in the text of such advertising that would reasonably suggest to a prospective person that any service is available other than those services as described in section 10.16.020 of this chapter. (n) No massage may be carried on within any cubicle, room, booth or any area within a massage establishment which is fitted 12 CENTRAL. R £COR'ID~ with a door capable of being locked. Ail doors to dressing rooms and treatment rooms shall open inward. Draw drapes, curtain enclosure, or accordion-pleated closures are acceptable on all inner dressing and treatment rooms in lieu of doors. (o) A massage shall not be given unless the patron's genitals are fully covered. (p) No massage establishment shall be open for business without at least one massage practitioner on the premises at all times who is in possession of a current, unrevoked permit. (q) A massage table shall be used for massage. No mattresses shall be placed on the floor. (r) No condoms shall be kept in the establishment unless they are the personal property of persons on site and for the individual's personal use. Massage Establishment Facilities Regulations Every massage establishment shall maintain facilities meeting the following requirements: (a) Any signs shall be in conformance with the current ordinances of the City of South San Francisco. (b) Minimum lighting shall be provided in accordance with the National Electrical Code, and, in addition, at least one artificial light of not less than forty (40) watts shall be provided in each room or enclosure where massage services are performed on patrons. (c) Minimum ventilation shall be provided in accordance with the Uniform Building Code. (d) Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be provided. (e) times. Hot and cold running water shall be provided at all (f) linens. Closed cabinets shall be provided for storage of clean (g) Adequate dressing, locker and toilet facilities shall be provided for patrons. (h) A minimum of one wash basin for employees shall be provided at all times. The basin shall be located within or as closed as practicable to the area devoted to performing of massage services. Sanitary towels shall also be provided at each basin. 13 CENTRAL RECORI3~ NO. (i) Pads used on massage tables shall be covered with material acceptable to the health officer of the County of San Mateo. (j) Proof of compliance with all applicable provisions of the City of South San Francisco Municipal Code shall be provided prior to the issuance of any permit. 10.16.100 Inspection by Officials The investigating and enforcing officials of the City of South San Francisco, including the health officer for the County of San Mateo or their designees, shall have the right to enter the premises from time to time during regular business hours for the purpose of making reasonable inspections to observe and enforce compliance with building, fire, building security/safety, electrical, plumbing, or health regulations, and to enforce compliance with applicable regulations, laws, and provisions of this chapter. 10.16.110 Permits Nonassignable No massage establishment or massage service conditional use permit may be sold, transferred or assigned by the permittee, or by operation of law, to any other person or persons; any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of such conditional use permit and such conditional use permit shall thereafter be deemed terminated and void, provided and excepting, however, that if the permittee is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without affecting a surrender or termination of such conditional use permit and in each case the permittee shall thereafter be deemed to be the surviving partner(s). If the conditional use permit is issued to a corporation, stock may be sold, transferred, issued, or assigned to stockholders who have been named on the application. If any stock is sold, transferred, issued, or assigned to a person not listed on the application as a stockholder, the conditional use permit shall be deemed terminated and void unless the new stockholders who acquire or possess more than five (5) percent are identified within 10 days of transfer and they meet all requirements under this chapter for stockholders. 10.16.120 Change of Location or Name (a) A change of location of a massage establishment may only be approved by the planning commission provided all ordinances and regulations of the City of South San Francisco are complied with. (b) No permittee shall operate under any name or conduct any massage establishment under any designation not specified in the approved permit. 14 CENTRAL RE. CORI3~ · ',cz NO. (C) Any application for an expansion of a building or other place of business of a massage establishment shall require compliance with this chapter; no expansion of a nonconforming location shall be permitted. 10.16.130 Massage Practitioner - Permit Required (a) No person shall engage in the business of massage or act as a massage practitioner unless such person holds a valid massage practitioner's permit issued by the City of South San Francisco. Each massage practitioner permit holder shall be issued a photo identification badge which will also serve as a massage practitioner permit. The permit holder shall display the massage practitioner permit on his/her person during business hours. 10.16.140 Massage Practitioner Permit Application (a) Each applicant for a massage practitioner permit shall make application to the Chief of Police or his authorized representative. Prior to submitting an application, a nonrefundable fee in the sum set forth in the master fee schedule shall be paid to help defray the costs of investigation required by this chapter. A copy of the cashier's receipt shall accompany the application. (b) Permit fees required under this section shall be in addition to any license, permit or fee requirements under any other section of ordinance of this code. (c) The application for permit does not authorize the applicant to provide massage until such permit has been granted. (d) Each applicant for a massage practitioner permit shall submit the following information under penalty of perjury: (1) All information required by Section 10.16.070(d) (3) through (8), (11), (16), (21) and (22). (2) The applicant must furnish a diploma or certificate of graduation from either a 200-hour resident course of instruction or proof of: (aa) Possession of a diploma or certificate of graduation from a recognized school or a public school which shows satisfactory completion of at least two hundred (200) hours of a nonrepetitive curriculum which covers the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology, and health practices with relation thereto, or (bb) Possession of a diploma or certificate of graduation from a recognized school or public school showing satisfactory completion of one hundred (100) hours or more of a nonrepetitive curriculum which covers the subjects described in subsection 15 CENTRAL. RECORI3~ 10.16.020(g) and a transcript or transcripts from a college or junior or community college in the State of California, or a college or junior or community college in another state from which courses would be acceptable for transfer credit to any college in the California State University and college system, which shows completion, with a passing grade or better, of at least eight (8) quarter units or six (6) semester units or courses in health theory, health care, anatomy, physiology, psychology, biomechanics or kinesiatrics. (cc) The massage practitioner has completed at least five hundred (500) hours of education and training at a recognized school and has passed the National Certification Examination for Therapeutic Massage and Body Work, administered by the Psychological Corporation, San Antonio, Texas. (3) The massage establishment's full name, telephone number. address and (4) Such other identification and information as the police department may require in order to fully investigate the matters specified as required to be set forth in the application. (5) Two (2) passport type photographs of the applicant to be provided by the applicant. Nothing contained herein shall be construed to deny the right of the Chief of Police or his designee to confirm the height and weight of the applicant, or to take additional photographs. (6) The Chief of Police or his authorized representative shall require the applicant to furnish fingerprints when needed for the purpose of establishing identification. Any required fingerprinting fees will be the responsibility of the applicant. Fingerprinting shall occur at a place designated by the chief. (7) A certificate from (a) a medical doctor approved by the police department who is licensed to practice in the State of California or (b) the San Mateo County Board of Health stating that the applicant has within thirty (30) days immediately preceding the date of application been examined and found to be free of any contagious or communicable disease. Pursuant to Health and Safety Code Section 199.20, and unless otherwise required by state or federal law, nothing in this chapter shall require testing or disclosure as to whether an applicant is infected with the human immunodeficiency virus (HIV). (8) Authorization for the City of South San Francisco, its agents and employees, to seek information and to investigate the truth of the statements set forth in the application and to investigate the background of the applicant. 16 CENTRAL RECOR~ (9) Each applicant shall successfully complete both a written test and practical performance examination administered through the City of South San Francisco wherein the applicant has been required to demonstrate a basic knowledge of anatomy, physiology, hygiene, and massage; the massage practitioner applicant shall be required to pass the examination. No applicant may take the test more than two times in a 12 month period. A copy of the proficiency test criteria shall be kept on file with the chief of police. The cost of completing the performance examination shall be paid by the applicant directly to the city's designated examination agent. The examination fee paid shall be in addition to any license, permit, investigation or other fee required under any other sections of this chapter or code. The practical examination shall be administered on behalf of the City of South San Francisco by a doctor or other licensed health professional who has knowledge of the techniques and practice of massage. The police chief shall establish procedures for the administration of the written and practical examinations in accordance with this chapter. Applicants who need a language interpreter for the written and/or practical examination shall be provided with these services by the city at the applicant's expense unless the applicant can provide their own interpreter services acceptable to the city and test administrator. (e) The chief of police or authorized representative, shall have up to 60 days after the submission of all required information to complete his investigation. Upon completion of his investigation, he shall grant the permit, with or without conditions, if in the exercise of his discretion he finds those matters designated in section 10.16.070(g) and in the exercise of his discretion further finds: (1) The applicant has furnished an acceptable diploma or certificate of graduation from a recognized school. (2) The applicant has furnished written proof from a recognized school that the minimum number of hours of instruction have been completed. (3) The applicant has passed the test required by subsection 10.16.140(d) (9) . (4) The applicant has provided the certificate required by section 10.16.140(d) (7). (f) If the Chief of Police or authorized representative, following investigation of the applicant, in the exercise of his discretion, fails to make the findings in (e) above, he shall deny said application by dated, written notice setting forth the reasons for said denial. 10.16.150 New Massage Practitioners--Notification The holder of the massage establishment permit shall notify the chief of police, in writing, of the name and address of each 17 CENTRAL RECORD~ person employed as a Massage Practitioner at such establishment within five (5) days of this person's being employed. The requirements of this section are in addition to the other provisions of this chapter, and nothing contained herein shall relieve the permittee of the responsibility of ascertaining, prior to employment, that said person has a current unrevoked Massage Practitioner's permit for the City of South San Francisco. 10.16.160 Renewal of Permits--Massage Practitioner Massage practitioner permits shall expire on the anniversary date of its issuance unless sooner suspended or revoked. Permittees shall have thirty (30) days from the date of expiration to renew their permit and may apply 90 days prior to expiration. If, upon the thirty-first day, after the permit expiration date, an application of renewal has not been received, the permit shall be deemed suspended until such time as the renewal application has been received. If a renewal application and all required information for the renewal is not received within 60 days after expiration, the permit shall be deemed expired and no privilege to provide massage shall exist. Renewals shall be processed and investigated and the applicant is required to submit that information which has changed from the last application or renewal. Massage practitioners shall submit a new certificate each year as required by section 10.16.140(d) (7) and shall be required to take a new test under section 10.16.140(d) (9) every two years. A renewal fee in the sum as set forth in the master fee schedule and/or Title 6 shall be charged to pay, in part, the cost of the investigation required by this chapter. 10.16.170 Application of Regulations to Existing Massage Establishments and Massage Practitioners The provisions of this chapter shall be applicable to all persons and businesses whether the business was established before or after the effective date of this chapter, except that massage establishments legally in business prior to the effective date shall have 30 days from the date this ordinance becomes effective to comply with the provisions of this chapter. Massage practitioners who have valid massage practitioner permits shall have until the expiration of their current permit to apply for a massage practitioner permit under the terms of this chapter but shall otherwise comply with the regulations set forth herein within 30 days. 10.16.180 Prohibited Conduct (a) It shall be unlawful for any massage practitioner or other person to massage the genital area of any patron or the breasts of any female patron or for any operator of a massage establishment to allow or permit such massage. 18 CENTRAl., RECORI)~ (b) It shall be unlawful for any massage practitioner to be other than fully clothed in non-transparent clothing at all times that shall not expose their genitals, pubic area, buttocks or chest or for any operator of a massage establishment to allow or permit different dress. (c) It shall be unlawful for a massage practitioner to perform any massage services at any location other than that location specified on the practitioner's permit. If during the life of a permit the applicant has any change in information concerning the original application, notification must be made to the Chief of Police, in writing, within thirty (30) days of the change. (d) It shall be unlawful for any massage establishment to provide a massage between 10:31 pm and 6:59 am. (e) It shall be unlawful for any massage practitioner to violate any of the mandatory requirements of this chapter applicable to massage practitioners. 10.16.190 Suspension or Revocation of Permits (a) Massage Practitioner Permit The Chief of Police or his authorized representative may suspend a massage practitioner permit (or existing massage technician permit) if any of the following are found: the permittee does not possess the qualifications for the permit as required by this chapter; has been convicted of any violation of the provisions of this chapter; has made a material misrepresentation on the permit application or renewal; has engaged in conduct as a massage practitioner in a manner which violates any of the mandatory provisions of this chapter, any conditions of the permit, or any of the laws which would have been grounds for denial of the permit. A hearing before the Chief of Police or his authorized agent shall be scheduled upon not less than 10 calendar days notice to the permittee stating the grounds for proposed revocation or suspension. Notice shall be given by personal service or certified mail to the address shown on the last application or renewal. If reasonable attempts to otherwise serve are not successful, service may be provided by first class mail. Notice of the decision shall be given in the same manner as for the hearing. The decision of the Chief of Police or authorized representative may be appealed by the permittee to the City Manager within 15 calendar days of service by filing written notice of appeal with the city manager's office stating the basis for the appeal and the errors claimed to have occurred. If the permit is suspended or revoked, the permit shall be surrendered. 19 CENTRAL R ECORE}~ U NO, Service shall be deemed complete when personal service is made, when the certified letter is delivered, or when the decision is mailed by first class mail. (b) Massage Establishment Permit (1) Permit Revocation (aa) A permit may be revoked or modified as provided by the provisions of this chapter and title 20. (bb) Grounds for Revocation A permit may be revoked or modified pursuant to the provisions of this section upon a finding of any one or more of the following grounds: (1) That such permit was obtained or extended by fraud. (2) That one or more of the conditions upon which such permit was granted have been violated. (3) That the use of facility for which the permit was granted is so conducted or maintained as to be detrimental to the public health or safety, or as to be a nuisance. (cc) Initiation of Action An action to revoke or modify a permit may be initiated by order of the city council, planning commission, chief of police, or the planning director, on its or his or her own motion or on the request of any city officer, provided however, that the planning commission may initiate an action to revoke or modify any permit granted or modified by either the director or commission. The order shall set forth grounds for revocation or modification. (dd) Planning Commission Hearing The commission shall hold an evidentiary hearing scheduled and noticed as required by chapter 20.88, regarding the order proposing the revocation or modification of a permit. (2) Permit Suspension The chief of police may suspend a massage establishment permit if the permittee has operated the massage establishment in a manner which violates any of the mandatory operational provisions of this chapter or any of the laws which would have been grounds for denial of the permit. For purposes of this section, permittee shall include the managing responsible officer or employee. Further, the permittee shall be responsible for those acts of its employees and massage practitioners which are done in the course and scope of their employment by the permittee. 20 CENTRAL. The permit suspension shall continue in effect until such time as the conditional use permit revocation process has been completed, or until such time as the police chief determines that the violations have been remedied and that the facility is operating consistent with the requirements of the massage ordinance and the applicable conditional use permit. No new application or change of ownership application will be accepted or processed for a specific business during judicial, quasi-judicial or administrative proceedings or hearings on the same business. 10.16.200 Appeal Procedures (a) Massage Establishment Permit Denial or Revocation Appeal The applicant may file an appeal with the city council on any action of the planning commission as provided by chapter 20.90 of this code. (b) Other Procedural Appeals The permittee or applicant, not later than 15 calendar days after service of notice of suspension, denial of application or renewal or approval with conditions, may file an appeal by filing a written statement of such appeal, including the grounds for the appeal and the asserted errors in the decision, with the city manager's office. The city manager or designee shall review the record of the hearing below including a transcript or a tape of the hearing if ones are made. No further testimony shall be taken. The manager or designee shall also allow oral argument not to exceed 15 minutes per side. Notice of the time for appeal argument shall be given by personal service or certified mail to the address shown on the last application or renewal. If reasonable attempts to otherwise serve are not successful, service may be provided by first class mail. After the argument, the city manager or designee shall render a written decision setting forth the reasons for said decision within ten (10) working days from the date the matter is submitted for decision. The action of the city manager may be appealed to the city council. The decision shall be served upon the permittee pursuant to the procedures for scheduling the argument. Service shall be deemed complete when personal service is made, when the certified letter is delivered, or when the notice is mailed by first class mail. 10.16.210 Burden of Proof Unless otherwise specifically prohibited by law, the burden of proof is on the permittee/applicant in any hearing or other matter under this chapter. 21 CENTRAL. 10.16.220 Public Nuisance Any massage establishment which is opened, operated, or maintained contrary to the provisions of this chapter shall be deemed a public nuisance. In addition to or in lieu of any other available legal remedies, the city attorney or district attorney of San Mateo County may commence a civil legal action or actions in a court of competent jurisdiction to abate such nuisance and to enjoin the continued operation and maintenance of the establishment in a manner prohibited by this article. 10.16.230 Adult Entertainment Business Notwithstanding any other provision of this code, a massage establishment or massage service as defined in this chapter which functions as an accessory use in an adult entertainment business shall comply with all requirements for an adult entertainment business as designated in Title 20 of this code and this chapter. 10.16.240 Hot Tub, Sauna, Bathhouse Establishment and Operations Requirements (a) Massage services shall not be given or made available to patrons at hot tub/sauna/bathhouse establishments, unless the permittee has obtained and maintained in effect a massage establishment permit for the hot tub/sauna/bathhouse establishment. Hot tub/sauna/bathhouse establishments which offer massage services must comply with all provisions of article II. Massages shall not be given in any rooms or areas in which a hot tub, sauna, shower or jacuzzi is located, or in wet and dry heat rooms, steam or vapor rooms or cabinets or bathrooms. All employees of the hot tub/sauna/bathhouse establishment who give massages to patrons must obtain and maintain in effect massage practitioner permits pursuant to this chapter. (b) Ail hot tub/sauna/bathhouse establishment employees, while on duty: (1) Shall remain fully clothed at all times per guidelines of section 10.16.080(j). (2) Shall not remain inside any of the individual rooms or suites with any patrons of the establishment while the doors leading to the hallways from such rooms or suites are closed, except for those employees who have obtained and maintained in effect a massage practitioner permit pursuant to this chapter and who are engaged in giving a massage to a patron in a lawful manner. (3) Shall not perform, for compensation or otherwise, any type of personal services for the patrons of the establishment, which personal services consist of the touching of any part of the body of a patron with any part of the employee's body, except that if the permittee has obtained and maintained in effect a massage establishment permit for the hot tub/sauna/bathhouse establishment 22 GENTRAI~ REGORI3~ and massage practitioners employed by the establishment have obtained and maintained in effect a massage practitioner permit, massage services may be provided in accordance with this chapter. 10.16.250 Violations - Penalties Any person violating any provision of this chapter shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided in chapter 1.24 of this code. 10.16.260 Severability In the event any section or portion of this ordinance shall be determined invalid or unconstitutional, such section or portion shall be deemed severable and all other sections or portions hereof shall remain in full force and effect. SECTION 2. Publication and Effective Date. Pursuant to the provisions of Government Code Section 36933, a Summary of this ordinance shall be prepared by the City Attorney. At least five (5) days prior to the Council meeting at which this Ordinance is schedule to be adopted, the City Clerk shall (1) publish the summary and (2) post in the City Clerk's office a certified copy of this Ordinance. Within fifteen (15) days after the adoption of this Ordinance, the City Clerk shall (1) publish the Summary and (2) post in the City Clerk's Office a certified copy of the full text of this Ordinance along with the names of those City Council members voting for and against this Ordinance or otherwise voting. This Ordinance shall become effective thirty (30) days from and after its adoption. Introduced at a regular meeting of the City Council of the City of South San Francisco, held the 14th day of December , 199 4 . Adopted as an Ordinance of the City of South San Francisco at a regular meeting of the City Council of the City of South San Francisco, held the llth day of January , 1995 , by the following vote: AYES: Counqilmembers Jack Drago, John R. Penna, Roberta Cerri Teglia and Mayor Robert Yee NOES: None ABSTAIN: None ABSENT: Councilmember Joseph A. Fernekes ATTEST: 23 C£NTRAL. RE. CORD~ As Mayor of the City of South San Francisco, I do hereby approve the foregoing Ordinance this llth day of January , 199 5 ~/ Massage8.Cln Y 24 CENTRAL RECORDS