HomeMy WebLinkAbout01-07 Repealing and Replacing Title 9, Massage Establishments, Practitioners and EmployeesORDINANCE NO. 01-7
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COSTA MESA
REPEALING AND REPLACING TITLE 9, CHAPTER II, ARTICLE 22 OF THE COSTA
MESA MUNICIPAL CODE REGARDING MASSAGE ESTABLISHMENTS,
WHEREAS, the permit requirements and restrictions imposed by this chapter are reasonably
necessary to protect the health, safety and welfare of the citizens of the City.
WHEREAS, The City is authorized, by virtue of the Constitution of the State of California,
and Section 51031 of the California Government Code, to regulate massage establishments by
imposing reasonable standards relative to the skill and experience of massage operators and
massage practitioners and imposing reasonable conditions on the operation of the massage
establishment.
WHEREAS, there is a significant risk of injury to massage clients by improperly trained
and/or educated massage practitioners and this chapter provides reasonable safeguards against
injury and economic loss.
WHEREAS, there is opportunity for acts of prostitution and other unlawful sexual activity to
occur in massage establishments. Courts have long recognized massage as a pervasively
regulated activity and that massage establishments are often brothels in disguise. The
establishment of reasonable standards for issuance of permits and restrictions on operations
would serve to reduce the risk of illegal activity.
WHEREAS, the restrictions and requirements contained in this chapter are intended to
reduce the burden of massage establishment regulation on the Police Department; and
WHEREAS, the regulations and restrictions contained in this chapter are intended to
discourage massage establishments from degenerating into houses of prostitution and the means
utilized in this chapter bear a reasonable and rational relationship to the goals sought to be
achieved.
WHEREAS, the current Costa Mesa Municipal Code does not adequately address the issues
presented in the replacement ordinance.
WHEREFORE, THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES ORDAIN
AS FOLLOWS:
Section 1. That Article 22 of Title 9 of the Costa Mesa Municipal Code is repealed and
replaced with the following new Article 22:
Article 22
MASSAGE ESTABLISHMENTS AND PRACTITIONERS
Sec. 9-323 Findings and Purpose.
Sec. 9-324 Definitions.
Sec. 9-325 Operator's Permit Required.
Sec. 9-326 Exceptions.
Sec. 9-327 Operator's Permit - Application.
Sec. 9-328 Operators and Managers - Examination Required.
Sec. 9-329 Operator's Permit - Issuance and Denial.
Sec. 9-330 Operating Requirements - General Conditions.
Sec. 9-331 Operating Requirements - Facilities.
Sec. 9-332 Operating Requirements - Operations.
Sec. 9-333 Inspections:
Sec. 9-334 Operating Permit - Non -Assignability.
Sec. 9-335 Operating Permit - Change in Ownership of Business.
Sec. 9-336 Operating Permit - Change of Location or Name.
Sec. 9-337 Applicability to Existing Massage Establishments.
Sec. 9-338 Massage Practitioner Permit Required.
Sec. 9-339 Massage Practitioner Permit - Application.
Sec. 9-340 Massage Practitioner - Written Examination Required.
Sec. 9-341 Massage Practitioner Permit - Issuance and Denial.
Sec. 9-342 Massage Practitioner Permit - General Conditions.
Sec. 9-343 Massage Practitioner Permit - Non -Assignability.
Sec. 9-344 Massage Practitioner - Additional or Change in Location.
Sec. 9-345 Applicability to Existing Massage Practitioners.
Sec. 9-346 Out Call Massage Permit.
Sec. 9-347 Out Call Massage - Application.
Sec. 9-348 Out Call Massage Permit - Issuance and Denial.
Sec. 9-349 Out Call Massage - Records Required.
Sec. 9-350 Out Call Massage Permit - Non -Assignability.
Sec. 9-351 Permit Term and Renewal. t
Sec. 9-352 Suspension, Revocation, Denial and Appeal.
Sec. 9-353 Notice.
Sec. 9-354 Appeal.
Sec. 9-355 New Application after Denial or Revocation of Permit.
Sec. 9-356 Surrender of Permit.
Sec. 9-357 Fees.
Sec. 9-358 Violation and Penalty.
Sec. 9-323 Findings and Purpose.
The City Council finds and declares as follows:
(a) The permit requirements and restrictions imposed by this chapter are reasonably necessary to
protect the health, safety and welfare of the citizens of the City.
(b) The City is authorized, by virtue of the Constitution of the State of California, and Section
51031 of the California Government Code, to regulate massage establishments by imposing
reasonable standards relative to the skill and experience of massage operators and massage
practitioners and imposing reasonable conditions on the operation of the massage establishment.
(c) There is a significant risk of injury to massage clients by improperly trained and/or educated
massage practitioners and this chapter provides reasonable safeguards against injury and
economic loss.
(d) There is opportunity for acts of prostitution and other unlawful sexual activity to occur in
massage establishments. Courts have long recognized massage as a pervasively regulated activity
and that massage establishments are often brothels in disguise. The establishment of reasonable
standards for issuance of permits and restrictions on operations would serve to reduce the risk of
illegal activity.
(e) The restrictions and requirements contained in this chapter are intended to reduce the burden
of massage establishment regulation on the Police Department.
(f) The regulations and restrictions contained in this chapter are intend to discourage massage
establishments from degenerating into houses of prostitution and the means utilized in this
chapter bear a reasonable and rational relationship to the goals sought to be achieved.
See. 9-324 Definitions.
For the purposes of this chapter, the following definitions shall apply unless the context clearly
indicates or requires a different meaning.
(a) "Adult Oriented Merchandise" means any sexually oriented implements, paraphernalia, or
novelty items, such as, but not limited to; condoms, dildos, sexually -oriented vibrators, sexually
oriented lubricants, which are designed or marketed primarily for the stimulation of human
genital organs.
(b) "Chief of Police" means the Chief of Police of the City of Costa Mesa, or his designee.
(c) "City" means the City of Costa Mesa.
(d) "City Council" means the City Council of the City of Costa Mesa.
(e) "City Manager" means the City Manager of the City of Costa Mesa, or his designee.
(f) "Conviction," or "convicted" means a guilty plea, guilty verdict or a conviction following a
plea of nolo contendere.
(g) "Customer area" means areas open to customers of the establishment or the general public.
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(h) "Employee" means any and all persons, other than a massage practitioner, operator or
manager, who renders any service, with or without compensation, for the owner, operator,
manager or agent of either an owner, operator or manager of a massage establishment and who
has no physical contact with customers or clients. For purposes of this chapter the term
"employee" shall include independent contractors.
(i) "Health Department" means the Health Care Agency of the County of Orange.
0) "Lobby" means one room or designated area, adjacent to the public entry, which is used for
an entry and/or waiting room for customers or other persons authorized to enter the premises.
(k) "Manager" means the person(s) designated by the operator of the massage establishment to
act as the representative and agent of the operator in managing day-to-day operations with
corresponding liabilities and responsibilities. Evidence of management includes, but is not
limited to, evidence that the individual has the power to direct or hire and dismiss employees,
control hours of operation, create policy or rules or purchase supplies. A manager may also be an
owner. A manager shall provide all of the information required for and meet the standards and
qualifications set forth in Sections 9-327 and 9-328 to qualify as a manager.
(1) "Massage" means any method of treating the external parts of the human body for remedial,
health, hygienic, relaxation or any other reason or purpose, whether by means of pressure on,
friction against or stroking, kneading, tapping, pounding, vibrating, rubbing or any other manner
of touching external parts of the human body with the hands, or with the aid of any mechanical
or electrical apparatus or appliance, with or without supplementary aids such as rubbing alcohol,
liniment, antiseptic, oil, powder, cream, ointment or other similar preparations commonly used in
this type of business or trade.
(m) "Massage establishment" means any enterprise or establishment having a fixed place of
business conducted within the City of Costa Mesa, where any person, firm, association,
partnership, corporation, or combination of individuals, engages in, conducts, carries on or
permits to be conducted or carried on, for money or any other consideration, the administration
to another person of a massage, bath or health treatment involving massages or baths including
but not limited to fomentation, electric or magnetic treatments, alcohol rubs, or any other type of
system for treatment or manipulation of the human body with or without any character of bath,
such as Turkish, Russian, Swedish, Japanese, vapor, shower, electric tub, sponge, mineral,
fomentation, or any other type of bath.
(n) "Massage room" means a cubicle, booth, room or enclosed or semi -enclosed area within a
massage establishment where massage services are performed on patrons.
(o) "Massage practitioner" means any person who administers to another person a massage as
defined herein, within a massage establishment for any form of consideration or in exchange for
anything of value whatsoever. The terms "massage therapist," "massage technician," "massage
trainee", "masseur" or "masseuse" are included within this definition for purposes of this
chapter.
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(p) "Operator" means all persons who have an ownership interest in the massage establishment.
A operator may also be a manager or an owner. A proposed operator shall provide all of the
information required for and meet all of the standards and qualifications set forth in Sections 9-
327 and 9-328 to qualify as an operator.
(q) "Operator's permit" means the permit issued pursuant to the provisions of this chapter
required to operate and/or manage a massage establishment.
(r) "Out Call Massage" means a massage performed or administered for money or other
consideration by a licensed massage practitioner at a location other than a licensed massage
establishment.
(s) "Owner" means the individual(s) whose name appears on the City business license and
includes any and all persons who have any ownership interest in a massage establishment. An
owner may also be a operator or manager.
(t) "Person" means any natural person, individual, or corporation, partnership, association or
other group or combination of individuals acting as an entity.
(u) "Police Department" means the Police Department of the City of Costa Mesa.
(v) "Qualified massage association" means any association which meets all of the following
criteria:
(1) Has established, as a minimum education requirement for membership, the completion of
at least five hundred (500) hours of training from a recognized school of massage, and has a
written and practical testing of equivalency administered and overseen by its admissions
committee or by a national certified program, endorsed by the National Commission for
Certifying Agencies (NCAA), which will be considered in lieu of the minimum education
requirement of five hundred (500) hours;
(2) Offers and/or requires participation and completion by members of a minimum of eight
(8) hours of specified continuing education per year as a condition of continuing membership;
(3) Is open to members of the general public, meeting the requirements for membership on a
national basis;
(4) Has minimum educational requirements or equivalents, including at least five hundred
(500) classroom hours or its equivalent in anatomy, physiology, hygiene, sanitation, massage
therapy and practice, ethics of massage practice, first aid and CPR. Equivalency must be verified
by written and practical testing by the association;
(5) The association has established rules of ethics and has enforcement procedures for the
suspension or revocation of membership for violation of such rules.
(w) "Recognized school of massage" means any school or institution of learning which teaches,
through State certified instructors, the theory, ethics, practice, profession, or work of massage,
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which school or institution complies with the California Education Code, including but not
limited to sections 94900 or 94905, and which requires a resident course of study before the
student shall be furnished with a diploma or certificate of graduation. Schools offering a
correspondence course not requiring personal attendance shall not be deemed a recognized
school.
Sec. 9-325 Operator's Permit Required.
It shall be unlawful for any person to engage in, conduct or carry on, or to permit the engagement
in, conduct of or carrying on the business or operation of 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 provisions of this Code, including but not limited to securing
the necessary business license and complying with Chapter I of Title 19 of this Code.
Sec. 9-326 Exceptions
The requirements of this chapter shall not apply to the following individuals while engaged in
performing the duties of their respective professions:
(a) Physicians, surgeons, chiropractors, acupuncturists, physical therapists or osteopaths duly
licensed to practice their respective professions in the State of California.
(b) A registered or licensed vocational nurse working on the premises of, and under the direct
supervision of, a State licensed physician, surgeon, chiropractor or osteopath. Practical nurses or
other persons that do not meet the requisite qualifications for a massage practitioner, or any other
person not otherwise licensed by the State of California, whether or not employed by physicians,
surgeons, chiropractors, osteopaths, acupuncturists, or physical therapists, may not provide
massage services or act as a massage practitioner.
(c) Hospitals, nursing homes, sanatoriums, or other health care facilities duly licensed by the
State of California.
(d) Barbers, beauticians, estheticians and manicurists who are duly licensed by the State of
California while engaging in the practice within the scope of their respective licenses, except that
this exemption applies solely for the massaging of the neck, face and/or scalp of the customer or
client of said barber or beautician or in the case of a licensed manicurist, the massaging of the
forearm, hands, calfs and/or feet.
(e) Accredited high schools, junior colleges, and colleges or universities whose coaches and
trainers are acting within the scope of their employment.
(f) Trainers of amateur, semi-professional or professional athletes or athletic teams.
Sec. 9-327 Operator's Permit - Application.
(a) Any person desiring to obtain a permit to operate and/or manage a massage establishment
shall submit a written application under penalty of perjury on the required form to the Chief of
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Police who shall conduct an investigation. The application shall be accompanied by a non-
refundable filing fee established by separate resolution of the City Council to help defray the cost
of the investigation required by this chapter.
(b) The application shall be completed and signed by the owner of the proposed massage
establishment if a sole proprietorship or if the applicant is a corporation or partnership, it shall
designate one of its officers or general partners as its authorized representative. The authorized
representative shall complete and sign all application forms required for an individual applicant
under this chapter.
(c) The application and fee required pursuant to this section shall be in addition to any other
license, permit or fee required by any other chapter of this Code or ordinance hereafter adopted.
Only one application fee shall be charged regardless of the number of owners or operators
designated in the application.
(d) The application for a permit does not authorize the operation or management of a massage
establishment unless and until such permit has been properly granted, nor does the possession of
a valid massage establishment permit authorize the possessor to perform work for which a
massage practitioner permit is required.
(e) The application for a massage establishment permit shall contain or be accompanied by the
following information:
(1) The type of ownership of the business, i.e., whether by individual, partnership,
corporation or otherwise.
(a) If the applicant is a corporation, the name of the corporation shall be set forth exactly
as shown in its articles of incorporation or charter together with the State and date of
incorporation and the names and residence addresses of each of its current officers, directors and
each stockholder holding more than five percent of the stock of that corporation.
(b) If the applicant is a partnership, the application shall set forth the name and residence
addresses of each of the partners, including limited partners.
(c) If the applicant is a limited partnership, it shall furnish 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 subsection pertaining to corporations shall apply.
(2) The true full and precise name under which the massage establishment is to be conducted.
(3) The present or proposed address where the massage establishment is to be conducted and
all telephone numbers for the massage establishment.
(4) A complete current list of the names and residence addresses of all massage practitioners,
aides, trainees and other employees who are or will be employed in the massage establishment if
known. If not known at the time of submission of the application, the applicant shall provide the
required information no later than ten (10) calendar days prior to opening for business.
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(5) The name and residence addresses of the proposed operator or manager who will be
principally in charge of the operation of the massage establishment.
(6) A description of any other business operated on the same premises as the proposed
massage establishment, or within the City or the State that is owned or operated by the owner or
operator.
(7) The name and address of the owner and lessor of the real property upon or in which the
proposed business is to be conducted. In the event the applicant is not the legal owner of the
property, the application must be accompanied by a copy of the lease and a notarized affidavit
from the owner of the property acknowledging that a massage establishment will be located on
his/her property.
(8) The complete business, occupation and employment history for eight years preceding the
date of application, including, but not limited to, a massage establishment or similar type of
business history and experience of the applicant;
(9) The complete massage permit history; whether such person has ever had any similar type
of 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 has been or was ever denied,
revoked or suspended; if a vocational or professional license or permit has been or was ever
denied, revoked or suspended; if the applicant has ever been required to surrender a permit or
license as a result of pending criminal charges or in lieu of said permit or license being
suspended or revoked and the reason therefore;
(10) All criminal convictions, including pleas of nolo contendere, within the last ten years
including those convictions dismissed or expunged pursuant to Penal Code Section 1203.4, but
excluding minor traffic violations, and the date and place of each such conviction and reason
therefore;
(11) A complete set of fingerprints taken by the Police Department. The applicant shall be
responsible for payment of any fingerprinting fee.
(12) Four (4) portrait photographs at least two (2) inches by two (2) inches in size taken
within the last month.
(13) Authorization for the City, its agents and employees to seek verification of the
information contained in the application.
(14) Such other identification and information as the Chief of Police may reasonably require
in order to discover the truth of the matters herein specified and as required to be set forth in the
application.
(15) A statement in writing and dated by the person providing the information that he or she
certifies under penalty of perjury that all information contained in the application is true and
correct.
(16) A certificate of compliance from any affected Department or Agency, including but not
limited to, the City's Development Services Department, Building Division and the Orange
County Health Department must be submitted prior to the application's final approval. Any
required inspection fees shall be the sole responsibility of the applicant. If the Chief of Police
does not receive the certificates of compliance within ninety (90) calendar days of the date of
filing of the application, said application shall be deemed void. If any land use permit or other
entitlement for the use of the property as a massage establishment is required, such permit or use
entitlement shall be obtained by the applicant prior to the massage establishment permit
becoming effective.
(f) Every owner, operator and mananger shall also provide the following personal information:
(1) The full, true name and all aliases used;
(2) Date and place of birth, California driver's license, California identification card, Social
Security card and resident alien card, if applicable.
(3) The current residence address and residence telephone number and all previous
residential addresses for a minimum of eight years immediately preceding the present address of
the applicant and the dates of residence for each address;
(4) Acceptable written proof that the owner and/or operator is at least eighteen (18) years of
age;
(5) Height, weight, gender and color of hair and eyes;
(g) If, during the term of a permit, the permittee has any change in information submitted on the
original or renewal application, the permittee shall notify the Police Department in writing of any
such change within ten business days thereafter.
(h) If an owner, operator or manager also desires to act as a massage practitioner or out call
massage practitioner, he or she shall also satisfy the requirements for the respective permit set
forth in this chapter.
Sec. 9-328 Operators and Managers - Examination Required.
(a) Every operator and managershall be required to take and pass a written test dealing with the
requirements of this chapter to ensure a complete understanding of the owner's, operator's,
manager's and employee's respective duties prior to issuance of an operator's permit or before
engaging in work at a massage establishment.
(b) The Chief of Police shall establish standards and procedures governing administrating,
grading and noticing of the examination required by this section.
(c) The examination shall consist solely of a written test regarding the rules and regulations for
massage establishments and massage practitioners and employees as set forth in this chapter.
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The examination shall be prepared, conducted and graded by the city, or in its sole discretion, by
a competent instructor certified by the Council for Private Post -secondary and Vocational
Education pursuant to Education Code Section 94311.1.
(e) A score of seventy (70) percent or better is required on each section of the written test. An
applicant who fails to pass any section of the examination shall not be eligible to take another
examination until sixty (60) calendar days after the previous examination. An applicant who fails
to pass upon a second attempt, shall not again be eligible until six (6) months thereafter. Any
applicant who has failed to pass the examination after their third (3rd) attempt shall not be
eligible to reapply and take the examination for a period of two (2) years thereafter. If an
applicant has three (3) or more sustained municipal code violations during any permit period, the
applicant, upon renewal, must retake and pass the written examination designated in this chapter.
(f) The examination will be in the English language. In the event the applicant requires that any
section of the examination be given in another language, the applicant shall pay any additional
fees or costs for a Court certified and Costa Mesa Police Department approved interpreter to
interpret the examination. Proof of valid Court certification must be provided to the Chief of
Police prior to the administration of any such non-English language examination.
Sec. 9-329 Operator's Permit'- Issuance or Denial.
(a) Upon receipt of a complete written application for an operator's permit, the Chief of Police
shall conduct an investigation to ascertain whether a permit should be issued as requested. The
Chief of Police shall, within sixty (60) calendar days of receipt of an application, approve,
conditionally approve or deny the application. The sixty (60) day period may be extended for up
to thirty (30) additional calendar days, if necessary, to complete the investigation. The Chief of
Police shall issue such permit as requested, unless he/she makes any of the following findings:
(1) The applicant has not passed the written examination as required by this chapter.
(2) The applicant, or any of the officers or directors of the corporation, a partner or any
person directly engaged or employed in the massage establishment, has within eight years
preceding the date of the application:
a. Been convicted of a violation of any provision of law pursuant to which a person is
required to register under the provisions of Penal Code Section 290, or conduct in violation of
California Penal Code Sections 266h, 2661, 314, 315, 316, 318, subsections (a), (b) or (d) of
Penal Code Section 647, or convicted of an attempt to commit or conspiracy to commit any of
the above mentioned offenses, or any other crime involving dishonesty, fraud, deceit, or moral
turpitude or when the prosecution accepted a plea of guilty or nolo contendere to a charge of a
violation of California Penal Code Sections 415, 602 or any lesser included or related offense, in
satisfaction of, or as a substitute for, any of the previously listed crimes, or any crime committed
while engaged in the ownership of a massage establishment or the practice of massage.
b. Been convicted of a violation of Health and Safety Code Section 11550 or any offense
involving the illegal sale, distribution or possession of a controlled substance specified in Health
and Safety Code Section 11054, 11055, 11056, 11057 or 11058.
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c. Been convicted of any offense in any other state that is the equivalent of any of the
abovementioned offenses.
d. Been subjected to a permanent injunction against the conducting or maintaining of a
nuisance pursuant to Sections 11225 through 11235 of the California Penal Code, or any similar
provisions of law in a jurisdiction outside the State of California.
e. Committed an act in another jurisdiction which, if committed in this State, would have
been a violation of law and, which, if done by a permittee under this chapter, would be grounds
for denial, suspension or revocation of the permit.
f. Has had a massage operator or massage practitioner permit or other similar license or
permit denied, suspended or revoked for cause by the City, any state, local agency or other
licensing authority, or has had to surrender a permit or license as a result of pending criminal
charges or in lieu of said permit or license being suspended or revoked.
g. Has engaged in conduct that would constitute grounds for suspension or revocation
under Section 9-352 of this chapter.
(3) The owner and/or operator has made a false, misleading or fraudulent statement or
omission of fact to the City in the permit application process.
(4) The application does not contain all of the information required by Section 9-327.
(5) The owner and/or operator is not at least eighteen (18) years of age.
(6) The massage establishment as proposed does not comply with all applicable laws,
including, but not limited to, health, zoning, fire and safety requirements and standards.
(7) The required fee(s) has not been paid and/or all other requirements of this chapter have
not been satisfied in the time specified.
(b) If the application is denied for failure to comply with subsection (a)(2) or (3) of this section,
the applicant may not reapply for a period of six (6) months from the date the application was
denied.
(c) If the Chief of Police, upon completion of the investigation, determines that the applicant
does not fulfill the requirements as set forth in this chapter, the Chief of Police shall deny said
application by dated written notice to the applicant. The applicant shall have the right of appeal
as set forth in Section 9-354.
Sec. 9-330 Operating Requirements - General Conditions
All owners and operators shall comply with the following general conditions and any other
conditions specified by the Chief of Police:
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(a) Except to the extent required, in writing, by a State -licensed medical practitioner, no
massage practitioner 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 manager of a massage
establishment allow or permit such a massage to the above specified areas. A massage shall not
be given and no patron shall be in the presence of a massage practitioner, operator, manager or
other employee of a massage establishment unless the patron's genitals, gluteal fold, anus, and, if
a female patron, the female patron's breasts, are fully covered by a non -transparent covering.
(b) No person granted a permit pursuant to this chapter shall use any name or conduct business
under any designation not specified in his or her permit.
(c) All massage establishments required to be licensed under this chapter shall have a manager
on the premises at all times the massage establishment is open. The operator of each massage
establishment shall file a statement with the Chief of Police designating the person or persons
with power to act as a manager. The operator and/or on duty manager shall post, on a daily
basis, the name and photograph (a minimum size of 4" x 6") of each on -duty manager and each
on -duty practitioner in a conspicuous public place in the lobby of the massage establishment.
The operator, or the manager in the operator's absence, shall be responsible for ensuring
compliance with this chapter.
(d) The operator's permit shall be displayed in a conspicuous public place in the lobby of the
massage establishment.
(e) The hours of operation must be posted in the front window and clearly visible from the
outside.
(f) No massage establishment required to be licensed under this chapter shall open for business
without having at least one massage practitioner who holds a current valid massage practitioner's
permit for that specific massage establishment. There shall be at least one massage practitioner
who holds a current valid massage practitioner's permit on the premises, and on duty, at all times
when the establishment is open.
(g) The operator and/or manager shall ensure that the massage practitioner permit for each on -
duty massage practitioner is conspicuously displayed in a public place in the lobby and that each
massage practitioner is wearing the identification required by Section 9-342(b) at all times when
working in the massage establishment. Such identification shall be provided to a city official
upon demand.
(h) The operator and/or manager shall ensure that all employees are provided with an
identification card that states, at a minimum, the employee's first name and title and/or position.
(i) An operator and/or manager shall be responsible for the conduct of all massage practitioners
and employees while they are on the massage establishment premises. Any act or omission of
any massage practitioner, employee or independent contractor constituting a violation of the
provisions of this chapter shall be deemed the act or omission of the operator or manager for
purposes of determining whether the operator's license shall be revoked, suspended, denied or
renewed.
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0) No operator and/or manager shall employ any person as a massage practitioner who does not
have a valid massage practitioner permit issued pursuant to this chapter. Every operator or
manager shall report to the Chief of Police any change of massage practitioner or employees,
whether by new or renewed employment, discharge or termination, on the form and in the
manner required by the Chief of Police. The report shall contain the name of the massage
practitioner or employee and the date of hire or termination. The report shall be made within five
(5) calendar days of the date of hire or termination. The operator or manager shall deliver notice
of the termination of any massage practitioner or employee no longer employed by the operator
or manager to the Chief of Police within five (5) calendar days of termination.
(k) All persons, whether massage practitioner or employee, employed in the massage
establishment shall be fully clothed at all times. Clothing shall be of a fully opaque, non -
transparent material and shall provide complete covering from at least the mid-thigh to at least
three inches below the collarbone. Massage practitioners shall wear fully buttoned or otherwise
fully fastened opaque smocks over street clothing while performing massage services or shall
wear employee uniforms that, at a minimum, meet the street clothing specifications set forth in
this section and which are approved by the Chief of Police.
(1) The operator and/or manager shall maintain a register of all massage practitioner and
employees. The employee register shall be maintained on the premises for a minimum period of
two years following a massage practitioner or employee's termination. The operator and/or
manager shall make the employee register immediately available for inspection upon demand of
a representative of the Police Department at all reasonable times. The employee register shall
include, but not be limited to the following information:
(1) The name, nicknames and/or aliases used by an massage practitioner or employee.
(2) The massage practitioner or employees' home address and relevant phone numbers
(including but not limited to home, cellular and pager numbers).
(3) The massage practitioner or employee's age, date of birth, gender, height, weight, color
of hair and eyes.
(4) The massage practitioner or employee's social security number.
(5) The date of employment and termination, if any
(6) The duties of each massage practitioner or employee.
(m) The operator and/or manager shall ensure that all massage practioner's are wearing their
police issued identification cards and that all employees are wearing their employer issued
identification cards at all times when working in the massage establishment. Such identification
shall be provided to a city official upon demand. The identification card shall be worn on outer
clothing with the photo side facing out. If a massage practioner changes his or her business
address, he or she shall, prior to such change, obtain from the Chief of Police a new photo
identification card and advise the Police Department, in writing, of the new business address.
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(n) No massage establishment shall operate as a school of massage, or use the same facilities as
that of a school of massage.
(o) At all times, the operator, manager, massage practitioner and employees shall comply with
all provisions of this chapter and any applicable provisions of this Code.
(p) Insurance. No person shall engage in, conduct or carry on the business of a massage
establishment unless there is on file with the City Clerk, in full force and effect at all times, a
policy of insurance issued by an insurance company authorized to do business in the State of
California evidencing that the permittee is insured under a liability insurance policy providing
minimum coverage of one million dollars ($1,000,000.00) for injury or death to one person
arising out of the operation of any massage establishment and the administration of a massage.
Sec. 9-331 Operating Requirements - Facilities
All owners, operators and managers shall comply with the following operating requirement for
facilities and any other conditions specified by the Chief of Police:
(a) Structure. Massage establishments shall be carried on in a structure that is located in a zoning
district that permits such use. When a massage establishment is newly constructed, three sets of
plans shall be submitted to the City and the County Health Care Agency for approval and shall
be accompanied by the appropriate plan check fee.
(b) Signs. Any signs shall be in conformance with the current ordinances of the City. Each
operator and/or manager shall post and maintain, adjacent to the main entrance and the front of
the business, a readable sign identifying the premises as a massage establishment. A sign, nor the
front of the business, shall not be illuminated by strobe or flashing lights.
(c) Services List. Each operator and/or manager shall post and maintain a list of services
available and the cost of such services in the lobby of the massage establishment in a
conspicuous public place and in any other location on the premises as the operator and/or
manager deems appropriate. No operator or manager shall permit, and no massage practitioner
shall offer or perform, any service other than those posted.
(d) Lighting. Minimum lighting for a massage establishment shall be provided in accordance
with Article 220 of the National Electric Code or successor provision or provisions. White light
illumination shall be activated at all times while the patron is in a massage room. No strobe, or
flashing lights shall be used. No colored lights shall be used nor shall any coverings be used
which change the color of the primary light source.
(e) Ventilation. The operator and/or manager shall provide in each massage room, minimum
ventilation in accordance with the Section 304.5 Uniform Building Code or successor provision
or provisions.
(f) Toilet Facilities. A minimum of one toilet and one separate wash basin shall be provided for
patrons in each massage establishment, which basin shall provide soap or detergent and hot and
cold running water at all times and shall be located within close proximity to the massage rooms.
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A permanently installed soap dispenser, filled with soap, and a single service towel dispenser
shall be provided at the restroom wash basin. Bar soaps shall not be used. A trash receptacle
shall be provided in each toilet room.
(g) Bathing, Dressing and Locker Facilities. If provided, there shall be a minimum of one
shower and one dressing room containing a separate locker capable of being locked for patrons
to be served at the massage establishment. The shower facility shall be equipped with soap or
detergent and hot and cold running water at all times and shall be located within close proximity
to the massage rooms. Bar soaps shall not be used.
(h) Separate Rooms. If male and female patrons are to be treated simultaneously at the same
massage establishment separate massage rooms, dressing and toilet facilities shall be provided
for male and female patrons. Each separate facility or room shall be clearly marked as such.
(i) Maintenance. Wet and dry heat rooms, steam or vapor rooms or cabinets, toilet rooms,
shower and bath rooms, tanning booths, whirlpool baths and pools shall be thoroughly cleaned
and disinfected with a disinfectant approved by the County Health Department, as needed, but at
least once each day the premises are open. All facilities for the massage establishment must be
in good repair and shall be thoroughly cleaned and sanitized at least on a daily basis when the
business is in operation. All walls, floors and ceilings of each restroom and shower area shall be
constructed with materials that are smooth and easily cleanable. No carpeting shall be installed in
any of these specified areas.
0) Massage Tables. A massage table shall be provided in each massage room and all massages
shall be performed on the massage table. The tables should have a minimum height of eighteen
(18) inches. Two-inch thick foam pads with a maximum width of four feet may be used on a
massage table and must be covered with durable, washable plastic or other waterproof material
acceptable to the County Health Department. Beds, floor mattresses and waterbeds shall not be
permitted on the premises.
(k) Front Door. One front door that enters into the lobby and/or other waiting room shall be
provided for customer use. All customers and any other persons other than massage practitioners
or employees shall be required to enter and exit through the front door of the establishment.
Sec. 9-332 Operating Requirements - Operations
All owners, operators and managers shall comply with the following operating requirements and
any other conditions specified by the Chief of Police:
(a) Equipment. Each operator and/or manager shall provide and maintain on the premises
adequate equipment for disinfecting and sterilizing instruments used in massage.
(b) Linen. Common use of towels or linen shall not be permitted. Towels and linen shall be
laundered or changed promptly after each use. Separate enclosed cabinets shall be provided for
the storage of clean and soiled linen and shall be plainly marked "clean linen" and "soiled linen"
and shall have doors or covers.
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(c) Living" Quarters Prohibited. No person or persons shall be allowed to reside, dwell, occupy
or live inside the massage establishment at any time. Living quarters, if any, shall be completely
separate from the massage establishment. No cooking or food preparation of any kind shall be
prepared for sale or sold in the establishment unless an appropriate food vending permit is
granted by the City and the County of Orange and a full service kitchen is installed. Such a
kitchen, if any, shall be for the sole use of employees, and shall be installed in an "employees
only" area. The full service kitchen shall have a minimum of a sink with hot and cold running
water, a refrigerator, a stove, and sufficient cabinets to store cooking utensils. _
(d) Alcoholic Beverages/Drugs. No person shall enter, be in or on, or remain in or on, any art of
a massage establishment while in possession of, consuming, using or under the influence of, any
alcoholic beverage or controlled substance. The operator and/or manager shall be responsible to
ensure that no such person shall enter or remain upon the premises of the massage establishment.
Service of alcoholic beverages shall not be permitted.
(e) Lotions and Oils. All lotions, oils, liniment, antiseptic, powder, cream, ointment or other
similar preparations commonly used in massage establishments as supplementary aids for
massage shall be maintained in hygienic and properly labeled containers.
(f) Adult Oriented Merchandise Prohibited. The use or possession of adult oriented
merchandise in or on any part of a massage establishment is expressly prohibited.
(g) Recordings. No electrical, mechanical or artificial device shall be used by the operator
and/or manager, massage practitioner or any employee of the massage establishment for audio
and/or video recording or for monitoring the performance of a massage, or the conversation or
other sounds in the massage rooms without the knowledge and written consent of the patron.
(h) Coverings. Each massage establishment shall provide to all patrons clean, sanitary and
opaque coverings of a minimum size of 30" x 60", capable of covering the patrons' specified
anatomical areas, as defined in section 13-860.2 of this code, including but not limited to the
genital area, anus and female breasts. No common use of such coverings shall be permitted and
re -use is specifically prohibited unless adequately cleaned prior to its re -use.
(i) Records. Every operator and/or manager shall keep a record of the dates and hours of each
treatment or service, the name and address of the patron, the name of practitioner administering
such service and a description of the treatment or service rendered. A short medical history form
shall be completed by the operator and/or manager to determine if the patron has any
communicable diseases, areas of pain, high blood pressure or any physical condition that may be
adversely affected by massage. These records shall be prepared prior to administering any
massage or treatment and shall be retained for a period of twenty-four (24) months after such
treatment or service. These records shall be open to inspection upon demand only by officials
charged with enforcement of this chapter or emergency personnel for emergency purposes and
for no other purpose. The Police Department may periodically inspect the records to ensure
compliance with this section. The information furnished or secured as a result of any such
records shall be used only to ensure and enforce compliance with this chapter, or any other
applicable State or Federal laws and shall remain confidential. Any unauthorized disclosure or
use of such information by any officer or employee of the City shall constitute a misdemeanor.
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0) Hours of Operation. Massage operations shall be carried on or conducted, and the premises
shall be open, only between the hours of eight (8:00) a.m. and ten (10:00) p.m.. The operator
and/or manager must advise the City, in writing, at the time of submission of the application for
a massage establishment permit of the hours of operation within the times set forth above. The
operator and/or manager shall notify the City, in writing, at least thirty (30) calendar days prior
to the date of the effective change, of any changes in the hours of operation. No person shall
operate a massage establishment or administer a massage in any massage establishment or
administer a massage pursuant to an off premises massage permit between the hours of ten
(10:00) p.m. and eight (8:00) a.m. A massage begun any time before ten (10:00) p.m. must
nevertheless terminate at ten (10:00) p.m. All customers, patrons and visitors shall be excluded
from the massage establishment during these hours and be advised of these hours. The hours of
operation must be displayed in a conspicuous public place in the lobby within the massage
establishment and in the front window clearly visible from the outside.
(k) Advertising. No massage establishment 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 or clients that any service is
available other than those services described in this chapter and posted on the premises as
required by this chapter, nor shall any massage establishment or out call massage service employ
language in the text of any advertising that would reasonably suggest to a prospective patron that
any service is available other than those services described in this chapter and posted on the
premises as required by this chapter.
(1) Handicapped Areas. All massage establishments must comply with all State and Federal laws
and regulations for handicapped customers.
(m) Compliance. Proof of compliance with all applicable provisions of this Code shall be
provided.
(n) Doors. All exterior doors (except back or rear exterior doors used only for employee
entrance to and exit from the massage establishment) shall remain unlocked during business
hours. All interior doors, including but not limited to all doors leading to customer areas, the
front reception, hallway or front exterior doors, shall not have any locking mechanisms. A door
leading from the lobby area to customer areas, if any, shall not have any locking mechanism or
be capable of being locked or blocked to prevent entry, in any manner.
(o) Massage and Dressing Room Doors. All massage and dressing rooms shall be screened off
by curtains, draw drapes, or doors that are mounted in compliance with the building code.. No
massage may be given within any massage room within a massage establishment that is fitted
with a door capable of being locked.
(p) Access. No person(s) other than the owner, operator, operator's employees, holders of valid
massage practitioner permits issued pursuant to this chapter and customers will be allowed
beyond the front lobby, which lobby shall be located directly inside the front door entrance,
during the hours of operation. Any other person(s) found beyond the first interior door leading to
the inside of the business including, but not limited to, hallways, massage rooms,
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reception/business offices or lounge area will be in violation of this section. Entry doors to any
room shall not be obstructed by any means.
(q) Discrimination. No massage establishment may discriminate or exclude patrons on the basis
of the race, sex, religion, age or handicap.
(r) Notices. The Chief of Police shall require that the following notice be posted in the event that
any massage practitioner or employee of the massage establishment or any person who has been
aided and abetted by an employee of the massage establishment has been found, after full
hearing by administrative proceeding or by a State Court, to have violated any of the offenses
that would be grounds for denial under Section 9-329 or 9-341:
NOTICE TO ALL PATRONS
THIS MASSAGE ESTABLISHMENT AND THE MASSAGE
ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND ARE
SUBJECT TO INSPECTION BY THE COSTA MESA POLICE
DEPARTMENT WITHOUT PRIOR NOTICE.
(1) The Chief of Police shall provide the language for said notice set forth above. Every
owner, operator and/or manager required to post such notice shall be required to pay for the cost
of any and all notices required by this section.
(2) The notice shall be conspicuously posted in a location within the massage establishment
that is easily visible to any person entering the premises and in each massage room. The notices
shall be posted for twelve (12) months following the violation of any of the offenses set forth
above.
Sec. 9-333 Inspections.
(a) The Police Chief and the County Health Department, or their authorized representatives,
shall have the right to enter the massage establishment at any time during business hours for the
purpose of making reasonable unscheduled inspections to observe and enforce compliance with
applicable regulations, laws, and provisions of this chapter. During an inspection, the Police
Department may also verify the identity of all employees.
(b) The City's Building and Safety, Fire Department, Police Department and the County Health
Department may, from time to time, make an inspection of each massage establishment for the
purpose of determining that the provisions of this chapter, State law or other applicable laws or
regulations are met. Criminal investigations may be conducted as directed by the Chief of
Police. The Police Department may inspect the occupied massage rooms for the purpose of
determining that the provisions of this chapter are met upon occurrence of any of the conditions
described in Section 9-332(r) that would require the posting of the "Notice To All Patrons".
(c) Inspections of the massage establishment shall be conducted during business hours.
(d) An operator, manager, their agents, servants, massage practitioner or employee commits a
punishable offense if he or she refuses to permit, delays or interferes with a lawful inspection of
the premises by a representative of the Police Department at anytime it is occupied or open for
business.
Sec. 9-334 Operator's Permit - Non -Assignability.
No operator's permit may be sold, transferred or assigned by a 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 permit and such
permit shall thereafter be null and void except as hereinafter set forth.
Sec. 9-335 Operator's Permit - Change in Ownership of Business.
(a) 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 effecting a surrender or termination of such permit, and in such case, the
permit, upon notification to the Chief of Police, shall be placed in the name of the surviving
partners. One (1) or more proposed partners in a partnership granted a permit hereunder may
make application to the Chief of Police, together with the fee established by the City Council, to
amend the original application providing all information as required for partners in the first
instance and, upon approval thereof, the transfer of the interests of one (1) or more partners to
the proposed partner or partners may occur.
(b) If the 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 permit shall be deemed
terminated and void; provided, however, the proposed transferee may submit to the Chief of
Police, together with a fee established by the City Council, an application to amend the original
application providing all information as required for stockholders in the first instance, and, upon
approval thereof, the transfer may then occur.
Sec. 9-336 Operator's Permit - Change of Location or Name.
(a) Every operator and/or manager shall report immediately to the Police Department any and all
changes of name or designation under which the business is to be conducted, and all changes of
address or telephone numbers of the massage establishment. The Chief of Police may approve a
change of location of the massage establishment provided there is compliance with all applicable
regulations of the City.
(b) No permittee shall operate, conduct, manage, engage in, or carry on the business of a
massage establishment under any name other than the person's name and the name of the
massage establishment specified in the permit.
(c) Any application for an extension or expansion of a building or other place of business of a
massage establishment shall require inspection(s) and shall comply with the provisions and
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regulations of this chapter and all other City ordinances including but not limited to zoning
ordinances and building, safety and occupancy standards.
Sec. 9-337 Applicability to Existing Massage Establishments.
(a) Commencing on the effective date of the ordinance codified in this chapter, all permits for a
massage establishment are to be issued in accordance with the provisions of this chapter.
(b) The provisions of this chapter shall be applicable to all persons and businesses described
herein whether the described activities were established before or after the effective date of this
article, except that massage establishments legally in business prior to the effective date hereof
shall have six (6) months or until the expiration of their current business license, whichever is
greater, to comply with the terms hereof.
Sec. 9-338 Massage Practitioner Permit Required.
No person shall perform or administer a massage, or advertise to provide massage services in the
City, unless such person has in effect a valid massage practitioner permit issued pursuant to
Sections 9-341 of this chapter. Each massage practitioner permit holder shall be issued a photo
identification badge and a massage practitioner permit. The permit holder shall wear the
identification badge on his or her person at all times when working in the massage establishment
and shall ensure that the massage practitioner permit is displayed in a conspicuous place in the
lobby during business hours. Each permit holder shall immediately surrender to the Chief of
Police any identification badge and massage practitioner permit issued by the city upon the
suspension, revocation, or expiration of such permit.
Sec. 9-339 Massage Practitioner Permit- Application.
(a) Any person desiring to obtain a massage practitioner permit shall file a written application
under penalty of perjury on the required form with the Chief of Police who shall conduct an
investigation. The application shall be accompanied by a non-refundable filing fee established by
separate resolution of the City Council to help defray the cost of the investigation. required by
this chapter.
(b) The application and fee required pursuant to this section shall be in addition to any other
license, permit or fee required by any other chapter of this Code or ordinance hereafter adopted.
(c) The application for a massage practitioner permit shall contain or be accompanied by the
following information:
(1) A statement of the exact location at which the applicant will be working as a massage
practitioner, including the full street address and all telephone numbers associated with said
location. In the event the applicant seeks to conduct out call massage services not listed in the
original application, an additional application and fee must be submitted.
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(2) The applicant's complete business, occupation and employment history for eight (8)
years preceding the date of application, including, but not limited to, a massage practitioner
license or similar type of business history and experience of the applicant;
(3) The complete massage practitioner permit history of the applicant; whether such person
has ever had any similar type of 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
has been or was ever denied, revoked or suspended; if a vocational or professional license or
permit has been or was ever denied, revoked or suspended; if the applicant has ever surrendered
a permit or license as a result of pending criminal charges or in lieu of said permit or license
being suspended or revoked and the reason therefore;
(4) All criminal convictions, including pleas of nolo contendere, within the last ten years
including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding
minor traffic violations, and the date and place of each such conviction and reason therefore;
(5) A complete set of fingerprints taken by the Police Department. The applicant shall be
responsible for payment of any fingerprinting fee.
(6) Four (4) portrait photographs of the applicant at least two (2) inches by two (2) inches in
size taken within the last month.
(7) A certificate from a medical doctor licensed to practice in the state stating that the
applicant has, within at least thirty (30) calendar days immediately preceding the date of
application, been examined and found to be free of any contagious or communicable disease.
(8) Such other information and identification as the Chief of Police may require in order to
discover the truth of the matters herein specified and as required to be set forth in the application.
(9) Authorization for the City, its agents and employees to seek verification of the
information contained in the application.
(10) A statement in writing, and dated, by the applicant that he or she certifies under penalty
of perjury that all information contained in the application is true and correct.
(d) Each applicant shall also provide the following personal information concerning -the
applicant:
(1) The full, true name and all aliases used by the applicant;
(2) Date and place of birth, California driver's license or California identification card,
Social Security card and resident alien card, if applicable.
(3) The current residence address and residence telephone number and all previous
residential addresses for a minimum of eight (8) years immediately preceding the present address
of the applicant and the dates of residence for each address;
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(4) Acceptable written proof that the applicant is at least eighteen (18) years of age;
(5) Height, weight, color of hair, eyes and gender.
(e) If, during the term of a permit, a permit holder has any change in information submitted on
the original or renewal application, the permit holder shall notify the Police Department of such
change within ten business days thereafter, in writing.
(f) In addition to the above information, each applicant must also furnish:
(1) An original or certified copy of a diploma or certificate and certified transcript of
graduation from a recognized school of massage; and
(2) Either one of the following documents:
(a) Proof of passage of an independently prepared and administered national certification
exam which has been recognized by objective standards to fairly evaluate professional levels of
skill, safety and competence as determined by a qualified massage association; or
(b) Proof of membership or the ability to obtain membership in a qualified massage
association.
(g) The applicant must also supply a course description, an outline of material covered, and a
letter to the City from the school administrator verifying completion.
(h) The applicant must also supply an original, valid State CPR certificate.
(i) Any outside course of study submitted for approval shall meet the State of California's Office
of Post -secondary Education's minimum requirements and shall be for a minimum of completion
of five hundred (500) hours of on -premises training.
Sec. 9-340 Massage Practitioner - Written Examination Required.
(a) Every massage practitioner shall be required to take and pass a written test prior to issuance
of a massage practitioner's permit and before engaging in work at a massage establishment.
(b) The Chief of Police shall establish standards and procedures governing administrating,
grading and noticing of the examination required by this section.
(c) The Chief of Police, in his sole discretion, may accept an applicant's passing written test
results, or equivalent thereof, from the City of Newport Beach in lieu of the applicant taking the
written test required by this section. Notwithstanding that an applicant's Newport Beach written
exam test results may be accepted by the Chief of Police, an applicant shall still be required to
comply with all other requirements of this chapter.
(d) The written test required by this section shall test the competency and ability of the applicant
to engage in the practice of massage, including but not limited to the applicant's knowledge of
22
the following basic subjects: anatomy, physiology, ethics, hygiene, the practice and theory of
massage, as massage is defined in this code, and CPR. The test shall also test the applicant's
knowledge of the rules and regulations set forth in this chapter to ensure a complete
understanding of the massage practitioner's duties established herein.
(e) The examination shall be prepared, conducted and graded by the city, or in its sole
discretion, by a competent instructor certified by the Council for Private Post -secondary and
Vocational Education pursuant to Education Code Section 94311.1.
(f) A score of seventy (70) percent or better is required on each section of the written test. An
applicant who fails to pass any section of the examination shall not be eligible to take another
examination until sixty (60) calendar days after the previous examination. An applicant, who
fails to pass upon a second attempt, shall not again be eligible until six (6) months thereafter.
Any applicant who has failed to pass the examination after their third (3rd) attempt shall not be
eligible to reapply and take the examination for a period of two (2) years thereafter. If an
applicant has three (3) or more sustained municipal code violations during any permit period,
the applicant, upon renewal, must retake and pass the written examination designated in this
chapter.
(g) The examination will be in the English language. In the event the applicant requires that
any section of the examination be given in another language, the applicant shall pay any
additional fees or costs for a Court certified and Costa Mesa Police Department approved
interpreter to interpret the examination. Proof of valid Court certification must be provided to
the Chief of Police prior to the administration of any such non-English language examination.
(h) An identification number shall be issued to all applicants sitting for an examination. Within
seven (7) calendar days of the completion of a scheduled examination, a pass/fail score, listed by
identification number, shall be posted on the first1floor of city hall on the public notice board for
a period of thirty (30) calendar days. All test scores are final and not subject to appeal.
Sec. 9-341 Massage Practitioner Permit - Issuance and Denial.
(a) Upon receipt of a written application for a massage practitioner's permit, the Chief of Police
shall conduct an investigation to ascertain whether such permit should be issued as requested.
The Chief of Police shall approve, conditionally approve or deny the application within sixty
(60) calendar days of the filing of an application. The sixty (60) day period may be continued for
an additional thirty (30) calendar days if necessary to complete the investigation. The Chief of
Police shall issue such permit as requested, unless he/she makes any of the following findings:
(1) The applicant has not passed every section of the practical and written examination as
required by this chapter.
(2) The applicant has within ten (10) years preceding the date of the application been
convicted of any of the following:
a. A violation of any provision of law pursuant to which a person is required to register
under the provisions of Penal Code Section 290, or conduct in violation of California Penal Code
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Sections 266h, 2661, 314, 315, 316, 318, subsections (a), (b) or (d) of Penal Code Section 647, or
convicted of an attempt to commit or conspiracy to commit any of the above mentioned offenses,
or any other crime involving dishonesty, fraud, deceit, moral turpitude or an act of violence or
when the prosecution accepted a plea of guilty or nolo contendere to a charge of a violation of
California Penal Code Sections 415, 602 or any lesser included or related offense, in satisfaction
of, or as a substitute for, any of the previously listed crimes , or any crime committed while
engaged in the ownership of a massage establishment or the practice of massage.
b. A violation of Health and Safety Code Section 11550 or any offense involving the
illegal sale, distribution or possession of a controlled substance specified in Health and Safety
Code Sections 11054, 11055, 11056, 11057 or 11058, or
Any offense in any other State that is the equivalent of any of the above-mentioned
offenses.
(3) That the applicant has committed an act in another jurisdiction that, if committed in this
State, would have been a violation of law and, which, if done by a permittee under this chapter,
would be grounds for denial, suspension or revocation of the permit.
(4) That the applicant has engaged in conduct which would constitute grounds for
suspension or revocation under Section 9-352 of this chapter.
(5) The applicant has had a massage operator or massage practitioner permit or other similar
license or permit denied, suspended or revoked for cause by the City, any state, local agency or
other licensing authority, or has had to surrender a permit or license as a result of pending
criminal charges or in lieu of said permit or license being suspended or revoked within eight (8)
years prior to the date of the application.
(6) The applicant has knowingly made a false, misleading or fraudulent statement or
omission of fact to the City in the permit application process.
(7) The application does not contain the information required by Section 9-339.
(8) The applicant is not at least eighteen (18) years of age.
(9) The applicant has not paid the required fee(s) and/or satisfied all other requirements of
this chapter in the time specified.
(b) If the application is denied for failure to comply with subsection (a)(5) or (a)(6) of this
section, the applicant may not reapply for a period of six (6) months from the date the application
was denied.
(c) If the Chief of Police, upon completion of the investigation, determines that the applicant
does not fulfill the requirements as set forth in this chapter, the Chief of Police shall deny said
application by dated written notice to the applicant. The applicant shall have the right of appeal
as set forth in Section 9-354.
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Sec. 9-342 Massage Practitioner Permit - General Conditions
All massage practitioners shall comply with the following conditions and any other conditions
specified by the Chief of Police on issuance of the massage practitioner's permit:
(a) Except to the extent required, in writing, by a State -licensed medical practitioner, no
massage practitioner shall massage or allow a massage practitioner aide, or employee to massage
the genitals, gluteal fold, or anal area of any patron or the breasts of any female patron. Nor
shall any massage practitioner, massage practitioner aide or employee solicit or allow a patron to
touch or massage in any manner the genitals, gluteal fold, or anal area of a massage practitioner,
massage practitioner aide or employee, or the breasts of any female massage practitioner,
massage practitioner aide or employee. A massage shall not be given and no patron shall be in
the presence of a massage practitioner, massage practitioner aide, operator, manager or other
employee of a massage establishment unless the patron's genitals, gluteal fold, anus, and, if a
female patron, the female patron's breasts, are fully covered by a non -transparent covering.
(b) The massage practitioner shall wear on their person a photo identification card prepared and
issued by the City at all times when present in the massage establishment. Such identification
shall be provided to the Chief of Police upon demand. The identification card shall be worn on
outer clothing with the photo side facing out. If a massage practitioner changes his or her
business address, he or she shall, prior to such change, obtain from the Chief of Police a new
photo identification card and advise the Police Department, in writing, of the new business
address.
(c) Massage practitioners shall not perform any massage at any location other than the location
specified on the permit, unless performing an Out Call massage pursuant to a separate permit.
(d) While on duty, the massage practitioner shall not use any name or designation or conduct
business under any other name or designation than the name specified in his or her permit and
photo identification card.
(e) Massage attendants shall be fully clothed at all times. Clothing shall be of a fully opaque,
non -transparent material and provide complete covering from at least the mid-thigh to at least
three inches below the collarbone. Massage practitioners shall wear fully buttoned or otherwise
fully fastened opaque smock over street clothing while performing massage services or shall
wear employee uniforms that, at a minimum, meet the street clothing specifications set forth in
this section and which are approved by the Chief of Police.
(f) A massage practitioner shall consent to, and shall not prevent, delay or interfere with an
inspection of the massage establishment by the City's Development Services, Fire Department,
Police Department and the Health Department for the purpose of determining that the provisions
of this chapter or other applicable laws or regulations are met. The massage practitioner shall
consent to the inspection of the occupied massage rooms by the Police Department for the
purpose of determining that the provisions of this chapter are met.
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Sec. 9-343 Massage Practitioner Permit - Non -Assignability.
No massage practitioner permit may be sold, transferred or assigned by a permittee, or any
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 permit and such permit shall thereafter be null and void.
Sec. 9-344 Massage Practitioner - Additional or Change in Location.
In the event a massage practitioner currently licensed by the City seeks employment at a massage
establishment in addition to or different from the establishment indicated on the original
application, the permitee shall notify the City in writing within ten (10) calendar days from the
date the permittee is employed by the establishment where the permittee is to provide massage
services. No additional fee shall be required.
Sec. 9-345 Applicability to Existing Massage Practitioners.
(a) Commencing on the effective date of the ordinance codified in this chapter, all permits for a
massage practitioner are to be issued in accordance with the provisions of this chapter.
(b) The provisions of this chapter shall be applicable to all persons and businesses described
herein whether the described activities were established before or after the effective date of this
article, except that massage practitioners legally permitted to do business in the City prior to the
effective date hereof shall have six (6) months or until the expiration of their current permit,
whichever is greater, to comply with the terms hereof.
Sec. 9-346 Out Call Massage Permit.
It shall be unlawful for any massage establishment or massage practitioner to provide, or to offer
to provide, massage at any location except at the place of business approved in the permit for a
massage establishment or massage practitioner; provided, however, that a massage establishment
or massage practitioner may obtain a special endorsement to their respective permit specifically
authorizing out call massage services.
Sec. 9-347 Out Call Massage Permit - Application.
(a) Any massage establishment or massage practitioner desiring to provide out call massage
services shall submit to the Chief of Police an application to provide out call massage services
within the city. The application shall be accompanied by a non-refundable filing fee established
by separate resolution of the City Council to help defray the cost of the investigation required by
this chapter. In addition to the requirement herein pertaining to an operator's permit and/or
massage practitioner permit application, the applicant shall also submit detailed information, on
the form provided by the police department, setting forth the manner and means of transporting,
to and from the premises where out call massage services are to be performed; clean, sanitary
towels, coverings, linens and sterilized instruments to be utilized, as well as any supplementary
aids, equipment or devices to be utilized and the method(s) of disposal thereof.
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(b) The application and fee required pursuant to this section shall be in addition to any other
license, permit or fee required by any other chapter of this code or ordinance hereafter adopted.
Sec. 9-348 Out Call Massage Permit - Issuance and Denial.
(a) Upon receipt of a complete written application for a permit, the Chief of Police shall conduct
an investigation to ascertain whether such permit should be issued as requested. The Chief of
Police shall approve, conditionally approve or deny the application within sixty (60) calendar
days of the filing of an application. The sixty (60) day period may be continued for an additional
thirty (30) calendar days if necessary to complete the investigation. The Chief of Police shall
issue such permit as requested, unless he/she makes any of the findings as set forth in Section 9-
341 of this chapter.
Sec. 9-349 Out Call Massage - Records Required.
All massage practitioners authorized to perform out call massage services hereunder shall keep a
separate written record, at the massage practitioner's principal place of business, of all out call
massage services performed. The record shall include, but not be limited to the dates and hours
of each treatment or service, the full name and complete address of the patron, the name of
practitioner administering such service and a description of the treatment or service rendered. A
short medical history form shall be completed by the out call massage practitioner to determine if
the patron has any communicable diseases, areas of pain, high blood pressure or any physical
condition which may be adversely affected by massage. These records shall be prepared prior to
administering any out call massage or treatment and shall be retained for a period of twenty-four
(24) months after such treatment or service. These records shall be open to inspection upon
demand only by officials charged with enforcement of this chapter or emergency personnel for
emergency purposes and for no other purpose. The Police Department may periodically inspect
the records to ensure compliance with this section. The information furnished or secured as a
result of any such records shall be used only to ensure and enforce compliance with this chapter,
or any other applicable State or Federal laws and shall remain confidential. Any unauthorized
disclosure or use of such information by any officer or employee of the City shall constitute a
misdemeanor.
Sec. 9-350 Out Call Massage Permit - Non -Assignability.
No out call massage permit may be sold, transferred or assigned by a permittee, or any 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 permit and
such permit shall thereafter be null and void
Sec. 9-351 Permit Term and Renewal
(a) Permits for massage establishments, massage practitioners and out call massage shall be for a
period of one year, unless sooner revoked as set forth in this chapter.
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(b) No permit granted herein shall confer any vested right to any person or business for more
than the permit period. All massage operators and practitioners subject to this chapter shall
comply with the provisions of this chapter and as they may be amended hereafter.
(c) Applications for the renewal of a permit shall be filed with the Chief of Police at least sixty
(60) calendar days before the expiration of then current permit. Temporary permits will not be
issued. Any permittee allowing his or her permit to lapse or which permit expires during a
suspension shall be, required to submit an new application and pay the corresponding original
application fees.
(d) Any person desiring to obtain a renewal of his/her respective permit shall file a written
application under penalty of perjury on the required form with the Chief of Police who shall
conduct an investigation. The application shall be accompanied by a non-refundable filing fee
established by separate resolution of the City Council to help defray the cost of the investigation
required by this chapter. An applicant shall be required to update the information contained in
his/her original permit application and provide any new and/or additional information as may be
reasonably required by the Chief of Police in order to determine whether said permit should be
renewed.
(e) A massage practitioner permittee shall also be required to submit with his or her renewal
application the following documents:
(1) A certificate, under penalty, of perjury, from a medical doctor licensed to practice in the
state stating that the applicant has, within at least thirty (30) calendar days immediately
preceding the date of application, been examined and found to be free of any contagious or
communicable disease.
(2) Proof that the applicant, has within four (4) years immediately preceding the date of
filing an application for renewal, passed the written examination described in Section 9-340 or
submits proof of completion of at least fifty (50) hours of continuing education courses in
massage from a recognized school of massage or a qualified massage association. A maximum
of eight (8) hours may be applied toward the fifty (50) hours of continuing education required by
this section for obtaining the State CPR certificate required by section 9-339(h).
Failure to provide the above documents shall be grounds for non -renewal of the massage
practitioner's permit.
(f) The Chief of Police shall have sixty (60) calendar days to investigate the renewal application
and shall render a decision within said sixty (60) calendar days, but no later than the date of
expiration of the permit.
Sec. 9-352 Suspension, Revocation, Denial and Appeal.
(a) Violation and Noncompliance. Failure of a permittee to comply with any requirement
imposed by this chapter or any other conditions imposed pursuant to the permit shall be grounds
for non -renewal, suspension or revocation of the permit.
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(1) A violation of any of the provisions of this chapter, or if an operator or manager has been
convicted of any law specified in Section 9-329(a).
(2) The Chief of Police makes any of the findings necessary to deny a permit under Section
9-329.
(3) If there have been repeated violations of the provisions of this chapter which requires
ongoing supervision or action by law enforcement officers which demonstrates that the operator
and/or manager is unable to operate or manage the massage establishment in a law abiding
manner.
(c) Suspension, Non -Renewal or Revocation of Massage Practitioner or Out Call Massage
Permit. The Chief of Police may suspend, revoke or refuse to renew a massage practitioner or out
call massage permit if any of the following conditions exists:
(1) A violation of any of the provisions of this chapter, or if a massage practitioner has been
convicted of any law specified in Section 9-341(a).
(2) The Chief of Police makes any of the findings necessary to deny a permit under Section
9-341.
Sec. 9-353 Notice.
When the Chief of Police concludes that grounds for denial, suspension, revocation of refusal to
renew a permit exist, the Chief of Police shall serve the applicant or permit holder, either
personally or by certified mail addressed to the address listed on the application, with a notice of
denial, non -renewal or notice of intent to suspend or revoke a permit (the "Notice"). This Notice
shall state the reasons for the proposed action, the effective date of the decision, the right of the
applicant or permit holder to appeal the decision to the City Manager and that the Chief of
Police's decision will be final if no appeal is filed within the time stated.
Sec. 9-354 Appeal.
(a) The right to appeal to the City Manager shall terminate upon the expiration of fifteen (15)
calendar days from the date service of the above Notice. The appeal shall be personally delivered
to or sent by certified mail to the office* of the City Clerk. The time for filing an appeal shall
begin from the date of personal service or the date of acknowledgment on the certified mail of
the above Notice.
(b) In the event an appeal is timely filed, the suspension or revocation shall not become effective
until a final decision has been rendered by the City Manager. If no appeal is filed, the suspension
or revocation shall become effective upon the expiration of the period for filing an appeal.
(c) The City Manager shall set a date, time and place for a hearing on appeal and shall notify the
appellant of such date, time and place of the hearing. Said notice shall be sent by certified mail
with proof of service attached, to the appellant, applicant or permittee at least ten (10) calendar
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days prior to the date of the hearing, addressed to the address listed on the respective application
or, the address given in the notice of appeal. The appellant, applicant or permittee shall be
entitled to notice of the basis for the proposed action, a copy of the documents upon which the
Notice was based and will have the opportunity to present contrary evidence at the hearing.
(d) The City Manager, in his sole discretion, may grant or deny a request for a continuance.
(e) The City Manager shall preside over the hearing on appeal or, in the alternative, the City
Manager may appoint a hearing officer to conduct the hearing and receive relevant evidence. The
City Manager or his designee shall render a written decision within forty-five (45) calendar days
from the date of the hearing. The decision of the City Manager or his designee shall be final.
(f) The following rules and evidence shall apply at the hearing:
(1) Oral evidence shall be taken only under oath or affirmation. The City Manager or
designee shall have authority to administer oaths, and to receive and rule on admissibility of
evidence.
(2) Each party shall have the right to call and examine witnesses, to introduce exhibits, and
to cross-examine opposing witnesses who have testified under direct examination. The City
Manager or his or her designee may also call and examine any witness.
(3) Technical rules relating to evidence and witnesses shall not apply to hearings provided
for in this chapter. Any relevant evidence may be admitted if it is material and is evidence
customarily relied upon by responsible persons in the conduct of their affairs regardless of the
existence of any common law or statutory rule that might make admission of such evidence
improper over objection in civil actions. Hearsay testimony may be admissible and used for the
purpose of supplementing or explaining any evidence given in direct examination, but shall not
be sufficient in itself to support a finding unless such testimony would be admissible over
objection in civil actions. The rules of privilege shall be applicable to the extent they are now, or
are hereafter permitted in civil actions. Irrelevant, collateral, undue, and repetitious testimony
shall be excluded.
Sec. 9-355 New Application after Denial or Revocation of Permit
A person may not apply for a permit pursuant to this chapter within one (1) year from the denial
or revocation of such permit.
Sec. 9-356 Surrender of Permit.
Any person to whom a permit has been issued pursuant to this chapter shall immediately
surrender his or her permit to the Chief of Police upon its suspension or revocation.
Sec. 9-357 Fees.
The City Council shall establish by resolution, and from time to time may amend, the fees for the
administration of this chapter. The City shall include in this resolution a health services fee
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schedule prescribing annual fees to be paid by the operator of each massage establishment, such
fees to be paid directly to the County of Orange Health Department and retained by the County
as reimbursement for said services related to this chapter. Fees required by this chapter shall be
in addition to any other fees that may be required under any other chapter of this Code.
Sec. 9-358 Violation and Penalty.
(a) Any person who violates any provision of this chapter is guilty of a misdemeanor.
(b) Any massage establishment operated, conducted or maintained contrary to the provisions of
this chapter shall be, and the same is declared to be, unlawful and a public nuisance, and the City
may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or
actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in the
manner provided by law, and shall take such other steps and shall apply to such court or courts as
may have jurisdiction to grant such relief as will abate or remove such massage establishments
and restrain and enjoin any person from operating, conducting or maintaining a massage
establishment contrary to the provisions of this chapter.
(c) The penalties set forth herein, including but not limited to the requirement for posting the
notice described in section 9-332(r), are cumulative and in addition to all other remedies,
violations and penalties set forth in this chapter, or in any other ordinances, laws, rules or
regulations of the City of Costa Mesa, County of Orange and the State of California.
Section 2. Any provision of the Costa Mesa Municipal Code or appendices thereto inconsistent
with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is
hereby repealed or modified to that extent necessary to affect the provisions of this Ordinance.
Section 3. If any section, subsection, sentence, clause, phrase or portion of this ordinance is
for any reason held to be invalid or unconstitutional by the decision of any court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of this
Ordinance. The City Council of the City of Costa Mesa hereby declares that it would have
adopted this Ordinance and each section, subsection, sentence, clause, phrase, or portion
thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses,
phrases or portions be declared invalid or unconstitutional.
Section 4. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of
this Ordinance and shall cause the same to be published and posted pursuant to the provisions
of law in that regard and this Ordinance shall take effect thirty (30) days after its final passage.
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PASSED AND ADOPTED this 6'bLday of `7Lti C�, , 2001.
ATTEST:
Deputy City &rk
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
APPROVED AS TO FORM:
/0 City Attorney 17
I, MARY T. ELLIOTT, Deputy City Clerk and ex -officio clerk of the City Council of the
City of Costa Mesa, hereby certify that the above and foregoing Ordinance No. -01-7 was
introduced and considered section by section at a regular meeting of said City Council held on
the 5'-)` day of Foal , 2001, and thereafter passed and adopted as a whole at a regular
meeting of said City Council held on the 5-` 'day of mA P -e H , 2001, by the following
roll call vote:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of the City
of Costa Mesa this r&�- day of TnAg-c-14 , 2001.
Deputy City Olerk and ex -officio
Clerk of the City Council of the
City of Costa Mesa
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