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HomeMy WebLinkAboutOrd. No. 2007-1222 ORDINANCE NO. 1222 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA, AMENDING AND RESTATING CHAPTER 5.18 OF THE LAKE ELSINORE MUNICIPAL CODE REGARDING MASSEURS, MASSEUSES AND MASSAGE PARLORS WHEREAS, Chapter 5.18 of the Lake Elsinore Municipal Code regulates the masseurs, masseuses and massage parlors within the City of Lake Elsinore; and WHEREAS, the permit requirements and restrictions imposed by this amendment to Chapter 5.18 are reasonably necessary to protect the public health, safety and welfare of the citizens of the City of Lake Elsinore by providing minimum building, sanitation and health standards for those establishments in which the practice of massage is performed, and to insure that the persons offering services therein shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered; and WHEREAS, the City of Lake Elsinore is authorized, by virtue of the State Constitution and California Government Code Section 51031, to regulate massage establishments by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of the massage establishment; and WHEREAS, there is a significant risk of injury to massage clients by improperly trained and/or educated massage technicians, and this amendment provides reasonable safeguards against injury and economic loss; and 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; and WHEREAS, the restrictions and requirements contained in this amendment reduce the burdens on the Police Department and permit the deployment of the police personnel such that more serious crimes may be prevented and more important laws enforced; and CITY COUNCIL ORDINANCE NO. 1222 PAGE 2 OF 36 WHEREAS, the regulations and restrictions contained in this amendment will tend to discourage massage establishments from degenerating into houses of prostitution and the means utilized in this Chapter bear a reasonable and rational relationship to the goals sought to be achieved. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA, ORDAINS AS FOLLOWS: SECTION 1. That Chapter 5.18 of the Lake Elsinore Municipal Code is hereby amended and restated as follows: CHAPTER 5.18 MASSAGE TECHNICIANS AND MASSAGE ESTABLISHMENTS 5.18.010 Findings and purpose. The permit requirements and restrictions imposed by this Chapter are reasonably necessary to protect the public health, safety and welfare of the citizens of the City of Lake Elsinore by providing minimum building, sanitation and health standards for those establishments in which the practice of massage is performed, and to insure that the persons offering services therein shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered. 5.18.020 Definitions. As used in this Chapter, the following terms shall have the meanings set forth herein:. "City Council" means The City Council of the City of Lake Elsinore. "City Manager" means the City Manager of the City of Lake Elsinore or his or her designated representative. "Conviction" or "convicted" means a plea or verdict of guilty or a conviction following a plea of nolo contendere. "Customer areas" means the areas open to customers of the massage establishment. "Employ" means the term "employ" shall include contracting with independent contractors. CITY COUNCIL ORDINANCE NO. 1222 PAGE 3 OF 36 "Employee" means the term "employee" shall include independent contractors. "Health department" means the Health Services Agency of the County of Riverside. "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 the same liabilities and responsibilities. Evidence of management includes, but is not limited to, evidence that the individual has 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 must meet the standards and qualifications of Sections 5.18.060 et seq. to qualify as a manager. "Massage" means any method of treating the external parts of the body for remedial, hygienic, relaxation or any other reason or propose, whether by means of pressure on, friction against or stroking, kneading, tapping, pounding, vibrating, rubbing or other manner of touching external parts of the 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, powders, creams, ointment or other similar preparations commonly used in this practice. "Massage establishment" means any business conducted within the City of Lake Elsinore 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, administration to another person of a massage, bath or health treatment involving massages or baths. A massage establishment is a personal service establishment within the meaning of Section 17.44.020 of the Lake Elsinore Municipal Code. "Massage establishment permit" means the permit required pursuant to the provisions of this Chapter to operate or manage a massage establishment or home occupation massage business. "Massage technician" means any person who administers to another person a massage within a massage establishment in exchange for anything of value whatsoever. The terms "massage therapist" and "massage practitioner" are included within this definition for purposes of this Chapter. CITY COUNCIL ORDINANCE NO. 1222 PAGE 4 OF 36 "Operator" means all persons who have an ownership interest in the massage establishment or home occupation massage business and are responsible for its day-to-day operations. "Owner" means the individual(s) whose name appears on the city business license. "Person" means any individual, or corporation, partnership, association or other group or combination of individuals acting as an entity. "Police Chief' means the Police Chief of the City of Lake Elsinore or his or her designated representative. "Police Department" means the Police Department and code enforcement division of the City of Lake Elsinore. "Recognized school of massage" mean any school or institution of learning which teaches, through state certified instructors, the theory, ethics, practice, profession or work of massage, which school or institution complies with the California Education Code, 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 actual attendance shall not be deemed recognized schools. 5.18.030 Massage establishment permit required. No person shall operate a massage establishment within the city without first obtaining a massage establishment permit pursuant to Sections 5.18.040 and 5.18.050, securing the necessary business license as required pursuant to Title 5. 5.18.040 Application for massage establishment permit. (A) Any person desiring a permit for a massage establishment shall file a written application on the required form with the Police Chief, who shall conduct an investigation. The application shall be accompanied by the appropriate filing fee established by resolution of the City Council. The application shall be completed and signed by the operator of the proposed massage establishment, if a sole proprietorship; one general partner, if the operator is a partnership; one officer or one director, if the operator is a corporation; and one participant, if the operator CITY COUNCIL ORDINANCE NO. 1222 PAGE 5 OF 36 is a joint venture. The application for permit does not authorize operation of a massage establishment unless and until such permit has been properly granted. The application shall contain or be accompanied by the following information: 1. The type of ownership of the business; for example, whether by individual, partnership, corporation or otherwise. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter, together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of that corporation. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners, including limited partners. If it 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. The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer. Such designated persons shall complete and sign all application forms required for an individual applicant under this Chapter, but only one application fee shall be charged; 2. The precise name under which the massage establishment is to be conducted; 3. The complete address and all telephone numbers of the massage establishment; 4. A complete current list of the names and residence addresses of all proposed massage technicians and employees in the massage establishment and the name and residence addresses of the manager or managing employee proposed to be principally in charge of the operation of the massage establishment; 5. A description of any other business operated on the same premises or within the City of Lake Elsinore or the State of California which is owned or operated by the applicant; 6. The following personal information concernmg the applicant: CITY COUNCIL ORDINANCE NO. 1222 PAGE 6 OF 36 a. Full complete name and all aliases used by the applicant; b. Current address and all previous residential addresses for eight years immediately preceding the present address of the applicant; c. Acceptable proof that the applicant is at least 18 years of age; d. Proof of legal residency and/or the ability to legally work in the United States; e. Height, weight, color of hair, eyes and gender; f. Current address and all previous residential addresses for eight years immediately preceding the present address of the applicant; g. Two front-faced portrait photographs at least two inches by two inches in size; h. The applicant's complete business, occupation and employment history for eight years preceding the date of application, including, but not limited to, the massage or similar business history and experience of the applicant; i. The complete massage 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 denied, revoked or suspended; and the reason therefore; j. All criminal convictions, including pleas of nolo contendere, within the last ten years, including those dismissed or expunged pursuant to California Penal Code Section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefore; k. A complete set of fingerprints taken by the Police Department; CITY COUNCIL ORDINANCE NO. 1222 PAGE 7 OF 36 7. 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 and a notarized acknowledgment from the owner of the property that a massage establishment will be located on his or her property ; 8. Authorization for the city, its agents and employees to seek verification of the information contained in the application; 9. Such other identification and information as the Police Chief may require in order to discover the truth of the matters herein specified and as required to be set forth in the application; 10. A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct; 11. Statements in writing and dated by the applicant and the applicant's designated manager(s) certifying under penalty of perjury that they: a. Have received a copy of this Chapter; b. Understand its contents; and c. Understand the duties of an operator or manager, as the case may be, as provided in this Chapter. If, during the term of a permit, the 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. 5.18.050 Massage establishment permit issuance and denial. A. Upon receipt of a written application for a permit, the Police Chief shall conduct an investigation to ascertain whether such permit should be issued as requested. The Police Chief shall, within 60 days of receipt of an application, approve, conditionally approve or deny the application. The 60-day period may be extended for up to 30 additional days, if necessary, to complete the investigation. The Police Chief shall issue such permit as requested, unless he or she makes any of the following findings: CITY COUNCIL ORDINANCE NO. 1222 PAGE 8 OF 36 1. The applicant, if an individual, or any of the officers or directors of the corporation, if the applicant is a corporation; or a partner, if the applicant is a partnership, or any person directly engaged or employed in the massage establishment, has within ten years preceding the date of the application: a. Been convicted of a violation of California Penal Code Sections 266h, 266i, 314, 315, 316, 318, 647(a) or (b) or any other provision of law pursuant to which a person is required to register under the provisions of California Penal Code Section 290 or when the prosecution accepted a plea of guilty or nolo contendere to a charge of a violation of California Penal Code Section 415 or any lesser included or lesser related offense in satisfaction of, or as a substitute of, any of the previously listed crimes; b. Been convicted of a violation of California Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in California Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058; c. Been convicted of any offense in any other state which is the equivalent of any of the above- mentioned offenses; d. Been engaged in conduct in another jurisdiction which, if it had occurred within the city, would constitute grounds for denial, suspension or revocation under this Chapter; e. Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to California Penal Code Sections 11225 through 11235 or any similar provisions of law in a jurisdiction outside the State of California; f. Engaged in conduct which would constitute an offense as described in subsection A.l.a. of this section; g. 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; h. Been convicted of an act involving theft, dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts CITY COUNCIL ORDINANCE NO. 1222 PAGE 9 OF 36 are related to the qualifications, functions or duties of the operator of a massage establishment; i. The applicant has had a massage operator or massage technician permit or other similar license or permit denied, suspended or revoked for cause by a licensing authority or by any city, county or state; 2. The applicant has made a false, misleading or fraudulent statement or omission of fact to the city in the permit application process; 3. The application does not contain all of the information required by Section 5.18.040; 4. The massage establishment, as proposed by the applicant, does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards; 5. The applicant has not satisfied the requirements of this Chapter in the time specified; 6. If the application is denied for failure to comply with subsections A.2. or 3. above, the applicant may not reapply for a period of one year from the date the application was denied. B. All operators and managers shall comply with the following conditions and any other conditions specified by the Police Chief: 1. Prohibited Massage Areas. Except to the extent required, in writing, by a state-licensed medical practitioner, no massage technician, massage technician aide or other person shall massage the genitals or anal area of any patron or the breast( s) of any female patron, nor shall any operator or manager of a massage establishment allow or permit such massage. No massage operator or designated manager, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, gluteal crease, anus or, in the case of a female, her breast(s), are fully covered. 2. Names. 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. CITY COUNCIL ORDINANCE NO. 1222 PAGE 10 OF 36 3. Manager on Premises. 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 Police Chief designating the person or persons with power to act as a manager. The operator shall also file with the Police Chief a statement, as required by Section 5.18. 040A.ll. above, signed and dated by each such designated manager certifying under penalty of perjury that they: a. Have received a copy of this Chapter; b. Understand its contents; and c. Understand the duties of a manager as provided in this Chapter. The operator and/or on-duty manager shall post, on a daily basis, the name of each on-duty manager 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. 4. Licensed Massage Technician on Premises. No licensed establishment shall be open for business without having at least one massage technician holding a current valid permit for the specific establishment on the premises and on duty at all times when the establishment is open. 5. Display of Permits and Identification Cards. The operator and/or designated manager(s) shall ensure the massage technician permit for each massage technician employed at the establishment (whether on duty or not) is conspicuously displayed in a public place in the lobby and that each massage technician is wearing or has in their possession the identification required by Section 5.18.080B.3. at all times when in the massage establishment. Such identification shall be provided to city regulatory officials upon demand. 6. Operator/Manager Responsibility. An operator and/or on- duty manager shall be responsible for the conduct of all employees while the employees are on the licensed premises. Any act or omission of any employee constituting a violation of the provisions of this Chapter shall be deemed the act or omission of the operator for purposes of determining whether the operator's license shall be revoked, suspended, denied or renewed. 7. Licensed Massage Technicians. No operator or manager shall employ any person as a massage technician who does not have a valid CITY COUNCIL ORDINANCE NO. 1222 PAGE 11 OF 36 massage technician permit issued pursuant to this Chapter. Every operator or manager shall report to the Police Chief any change of employees, whether by new or renewed employment, discharge or termination, on the form and in the manner required by the Police Chief. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within five days of the date of hire or termination. The operator shall deliver the permit and photo identification card of any massage technician no longer employed by the operator to the Police Chief within five business days. 8. Clothing. All persons 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 of their genitals, pubic area, buttocks, anal area and chest area. 9. Roster of Employees. The operator and/or on-duty manager shall maintain a register of all employees, showing the name, nicknames and aliases used by the employee, home address, age, birth date, gender, height, weight, color of hair and eyes, phone numbers, social security number, date of employment and termination, if any, and duties of each employee. The above information on each employee shall be maintained in the register on the premises for a period of two years following termination. The operator and/or manager on duty shall make the register of employees available immediately for inspection by police upon demand of a representative of the Police Department at all reasonable times. 10. Outcall Massages. It shall be unlawful for any massage technician to perform any massage services in any commercial establishment other than a premises holding a valid massage establishment permit or business office occupied by the customer. 11. Insurance. Each operator shall provide the Police Chief with evidence of the insurance required by Section 5.18.090B.13. prior to the issuance of the permit during the background process. 12. Compliance with Code. The operator shall comply with all provisions of this Chapter and any applicable provisions of the Lake Elsinore Municipal Code. C. Outcall massages may be booked by the operators and/or managers of a massage establishment at locations listed in subsection B.l O. of this CITY COUNCIL ORDINANCE NO. 1222 PAGE 12 OF 36 section, so long as such outcall massages are incidental to the operation of the massage establishment and so long as the following requirements are met: 1. Identification Cards. The operator and/or manager shall ensure that, at all times while conducting business outside of the massage establishment, each massage technician wears or has in their possession the identification required by Section 5.18.080B.3. Such identification shall be provided to city regulatory officials upon demand. 2. Establishment/Operator Responsibility. The operator and/or manager shall be responsible for the conduct of all employees while they are acting on behalf of the massage establishment. Any act or omission of any employee constituting a violation of the provisions of this Chapter shall be deemed the act or omission of the operator for proposes of determining whether the operator's license shall be revoked, suspended, denied or renewed. 3. Licensed Massage Technicians. No operator and/or manager shall allow any person to act as a massage technician outside of the massage establishment who does not have a valid massage technician permit issued pursuant to this Chapter and who does not normally perform massage within the massage establishment. 4. Clothing. All persons employed by the massage establishment shall be fully clothed at all times while acting on behalf of the establishment or performing under the massage establishment permit. Clothing shall be of a fully opaque, non-transparent material and shall provide complete covering of their genitals, pubic area, buttocks, anal area and chest area. 5. Services List. The massage technician shall carry an updated list of services available and the cost of such services and shall provide it to the potential patron for their review. No massage technician shall offer or perform any service other than those posted. 6. Lighting. If massages are provided in an enclosed location, the massage technician shall ensure that each room or enclosure in which a massage is given has lighting and ventilation that complies with the Uniform Building Code. The lighting in each room or enclosure shall be activated at all times while the patron is in such room or enclosure. CITY COUNCIL ORDINANCE NO. 1222 PAGE 13 OF 36 7. Massage Tables and Chairs. Proper massage tables or massage chairs shall be utilized, which have at least two-inch thick foam pads covered with durable, washable plastic or other waterproof material. Beds, floor mattresses and waterbeds are not permitted to be used or on the premises. 8. Sterilizing Equipment. Each massage technician shall provide and maintain at the location where the massage is performed adequate equipment for disinfecting and sterilizing instruments used in massage. 9. Linen. Common use of towels or linen shall not be permitted. Towels and linen shall be laundered or changed promptly after each use. Separate cabinets or containers shall be provided for the storage of clean and soiled linen and such cabinets or containers shall be plainly marked: "clean linen" and "soiled linen". No contraception devices, i.e. condoms or other prophylactic shall be allowed on the premises or possessed by any employee. 10. Alcoholic Beverages/drugs. No person shall enter, be in or remain in any place where massages are being performed while in possession of, consuming, using or under the influence of any alcoholic beverage or controlled substance. The massage technician shall be responsible to ensure that no such person shall enter or remain in the massage area. Service of alcoholic beverages shall not be permitted. 11. Recordings. No electrical, mechanical or artificial device shall be used by the massage technician, massage technician aide or other person 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 or consent of the patron. 12. Coverings. The massage technician shall provide to all patrons clean, sanitary and opaque coverings capable of covering the patrons' specified anatomical areas, including the genital area, anus and female breast(s). No common use of such coverings shall be permitted, and re-use is prohibited unless adequately cleaned. 13. Records of Treatment. The operator of the massage establishment shall keep a record of the dates and hours of each treatment or service, the name and address of the patron, the name of technician administering such service and a description of the treatment or service rendered. A short medical history form shall be completed by the establishment/operator to determine if the CITY COUNCIL ORDINANCE NO. 1222 PAGE 14 OF 36 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 massage or treatment and shall be retained for a period of 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 and for no other purpose. The Police Department shall periodically inspect the records to ensure compliance with this section. The records shall be kept at the massage establishment. The information furnished or secured as a result of any such records should 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. 14. Hours of Operation. The massage technician shall ensure that massages are offered only during the times offered by the massage establishment. No person shall administer a massage on an outcall basis between the hours of 8:00 p.m. and 7:00 a.m. A massage begun any time before 8:00 p.m. must nevertheless terminate at 8 :00 p.m. All customers, patrons and visitors shall be advised of these hours. 15. Advertising. No operator granted a permit under this Chapter or any massage technician operating under the permit 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 patrons that any service is available on an outcall basis other than those services described in this Chapter. Nor shall any operator or massage technician employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available on an outcall basis other than those services authorized by this Chapter. 16. Discrimination. No operator or massage technician may discriminate or exclude patrons on the basis of their race, sex, religion, age, handicap or any other classification protected under federal or state laws, rules or regulations. 17. Inspections and Searches. The massage establishment operator consents to the inspection of the massage establishment by the city's building and safety, fire department, Police Department, code enforcement and the health department for the purpose of determining that the provisions of this CITY COUNCIL ORDINANCE NO. 1222 PAGE 15 OF 36 Chapter or other applicable laws or regulations are met. The massage technician consents 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 upon occurrence of any of the conditions described in Section 5.18.090B.18. which would require the posting of the Notice to All Patrons as described in Section 5.18.090B. 5.18.060 Massage technician permit. No person shall perform or administer a massage or advertise to provide massage services in the City of Lake Elsinore unless such person has in effect a valid massage technician permit issued pursuant to Sections 5.18.070 and 5.18.080 of this Chapter. A massage technician shall comply with the requirements of Sections 5.18.070 and 5.18.080. 5.18.070 Application for massage technician permit. A. Any person desiring a massage technician permit shall file a written application on the required form with the Police Department. The application shall be accompanied by the appropriate filing fee established by resolution of the City Council. The application shall contain the following information: 1. A statement of the exact location at which the applicant will be working as a massage technician, including the full street address and all telephone numbers associated with the location and the name and address and the following personal information concerning the applicant: a. Full complete name and all aliases used by the applicant, along with complete residence address and telephone; b. All previous residential addresses for eight years immediately preceding the current address of the applicant; least 18 years of age; c. Acceptable written proof that the applicant is at d. Proof of legal residency and/or the ability to legally work in the United States; e. Height, weight, color of hair and eyes and gender; CITY COUNCIL ORDINANCE NO. 1222 PAGE 16 OF 36 f. Two front-faced portrait photographs at least two inches by two inches in size; g. The business, occupation and employment history of the applicant for the eight years immediately preceding the date of the application; h. The complete permit history of the applicant and whether such person has ever had any license or permit, issued by any agency, board, city or other jurisdiction, denied, revoked or suspended and the reasons therefore; 2. All criminal convictions, including pleas of nolo contendere, within the last ten years, including those dismissed or expunged pursuant to California Penal Code Section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefor; 3. A complete set of fingerprints taken by the Police Department; 4. Such other information and identification as the Police Chief may require in order to discover the truth of the matters herein specified and as required to be set forth in the application; 5. Authorization for the city, its agents and employees to seek verification of the information contained in the application; 6. A statement in writing and dated by the applicant certifying under penalty of perjury that all information contained in the application is true and correct; 7. A statement in writing and dated by the applicant certifying under penalty of perjury that he or she: a. Has received a copy of this Chapter; b. Understand its contents; and c. provided in this Chapter. Understands the duties of a massage technician as CITY COUNCIL ORDINANCE NO. 1222 PAGE 17 OF 36 - 8. 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. B. Each applicant must furnish, along with his or her photograph, an original or certified copy of a diploma or certificate and certified transcript of graduation for completion of 720 hours of instruction from an approved or recognized school of massage, wherein the method, practice, profession, theory, ethics, anatomical and physiological knowledge and practice of massage is taught by state certified instructors. 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. 1. The Police Chief may consider an applicant's study of massage completed outside the State of California if proof of completion from a formalized course of study in massage practice, anatomy and/or physiology is provided with the application. Proof of completion shall include dates of study and the name, address and phone number of the school attended. 2. Any outside course of study submitted for approval shall meet the State of California's Bureau of Private Post-Secondary Vocational Education's minimum requirements and be for completion of 720 hours of on- premises training. C. The applicant must also meet and provide documentary proof of the following requirement: completed 720 hours of instruction in a massage specialty (therapeutic approach) at a recognized school of massage taught by state- certified instructors. D. The applicant must also provide documentary proof of a valid policy of insurance from a 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 two million dollars ($2,000,000) for personal injury or death to one person arising out of the administration of a massage. The policy must remain in full force and effect while the massage technician license is valid and is subject to inspection and verification by the Police Department. CITY COUNCIL ORDINANCE NO. 1222 PAGE 18 OF 36 E. The applicant must be willing to participate in a written and/or practical examination conducted by the Police Department or their representative. The representative shall consist of a member(s), appointed by either the health officer or the Police Department, who are qualified by reason of education and experience concerning the methods and procedures used in the practice of massage. The health officer and/or the Police Department shall develop and establish standards and procedures for the panel governing the administration of examinations for applicants for a massage technician license in order to determine whether such applicants are competent to engage in the practice of massage, and the health officer and/or the Police Department shall exercise such supervision as may be necessary to assure compliance therewith. 5.18.080 Massage technician permit issuance and denial. A. Upon receipt of a written application for a permit, the Police Chief shall conduct an investigation in such manner as he or she deems appropriate in order to ascertain whether such permit should be issued as requested. The Police Chief shall approve, conditionally approve or deny the application within 60 days of the filing of an application. The 60-day period may be continued for an additional 30 days if necessitated by the occurrence of events beyond the control of Police Chief. The Police Chief shall issue such permit as requested, unless he or she makes any of the following findings: 1. The applicant has within ten years preceding the date of the application been convicted of any of the following: a. A violation of California Penal Code Sections 266(h), 266(i), 314, 315, 316, 318, California Penal Code Section 647 (a) or (b), or that the applicant is required to register under the provisions of California Penal Code Section 290, or when the prosecution accepted a plea of guilty or nolo contendere to a charge of a violation of California Penal Code Section 415 or any lesser included or lesser related offense in satisfaction of, or as a substitute for, any of the previously listed crimes; b. A violation of California Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in California Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058; or -- CITY COUNCIL ORDINANCE NO. 1222 PAGE 19 OF 36 c. Any offense in any other state which IS the equivalent of any of the above-mentioned offenses. 2. The applicant has engaged in conduct which would constitute an offense as described in subsection A.l.a. of this section within ten years immediately prior to the filing of any application; 3. The applicant has committed an act, 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; 4. The applicant has been convicted of an act involving theft, dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are substantially related to the qualifications, functions or duties of a massage technician; 5. The applicant has had a massage establishment permit or massage technician's permit or other similar license or permit denied, suspended or revoked for cause by a licensing authority or by any city, county or state within ten 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. by Section 5.18.070; The application does not contain the information required 8. The applicant failed to pass any written or practical examination given by the Police Department or health officer; 9. The applicant has not satisfied the requirements of this Chapter in the time specified; 10. If the application is denied for failure to comply with subsections A.6., 7. or 8. above, the applicant may not reapply for a period of six months from the date the application was denied. CITY COUNCIL ORDINANCE NO. 1222 PAGE 20 OF 36 B. All massage technicians shall comply with the following conditions and any other conditions specified by the Police Chief on issuance of the massage technician's permit: 1. Prohibited Massage Areas. Except to the extent required, in writing, by a state-licensed medical practitioner, no massage technician, massage technician aide or other person shall massage the genitals or anal area of any patron or the breast(s) of any female patron. No massage technician, massage technician aide or other person, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, gluteal crease, anus or, in the case of a female, her breast(s), are fully covered. 2. Covering. No massage technician shall massage any patron unless the person's genitals, gluteal crease, anus and, in the case of a female, her breast( s), are fully covered at all times while the technician or other employee is present in the same room as the patron. 3. Identification Cards. The massage technician shall wear or have in their possession 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 city regulatory officials upon demand. When worn, the identification card shall be worn on outer clothing with the photo side facing out. If a massage technician changes his or her business address, he or she shall, prior to such change, obtain from the Police Chief a new photo identification card and advise the Police Department, in writing, of the new business address. 4. Massage Locations. Massage technicians shall not perform any massage at any location other than the massage establishment specified on the permit or at an outcall location booked by that massage establishment pursuant to Section 5.18.050C. 5. Names. While on duty, the massage technician shall not use any name other than that specified on the photo identification card. 6. Clothing. Massage technicians, massage technician aides and other persons shall be fully clothed at all times. Clothing shall be of a fully opaque, non-transparent material and provide complete covering of their genitals, pubic area, buttocks, anal area and chest area. CITY COUNCIL ORDINANCE NO. 1222 PAGE 21 OF 36 7. Inspections and Searches. The massage technician consents to the inspection of the massage establishment by the city's building and safety, fire department, Police Department, code enforcement 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 technician consents 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 upon occurrence of any of the conditions described in Section 5.18.090B.18., which would require the posting of the Notice to All Patrons as described in Section 5.18.090B. 5.18.090 Requirements of operation of a massage establishment. A. Facilities. 1. Structure. Massage establishments shall be located in a zoning district which permits such use. When a new massage establishment is constructed, a set of plans shall be submitted to the City of Lake Elsinore for approval and shall be accompanied by the appropriate plan check fee. 2. Signs; Display of Permits. Each operator shall post and maintain, in compliance with existing state and city laws, a readable sign identifying the premises as a massage establishment. The sign and the front of the business shall not be illuminated by strobe or flashing lights. Each operator and/or on-duty manager shall display the operator's permit in a conspicuous public place in the lobby of the massage establishment. In addition, as indicated in Section 5.18.050B.5., each operator and/or on-duty manager shall ensure the massage technician permit for each massage technician employed at the establishment (whether on-duty or not) is conspicuously displayed in a public place in the lobby, and that each massage technician is wearing or has in their possession the identification required by Section 5.18.080B.3. at all times when in the massage establishment. The operator and/or on-duty manager must also post, on a daily basis in a conspicuous public place in the lobby, the name of the operator and/or on-duty manager, as well as all on- duty massage technicians. Finally, the hours of operation must be posted in the front window and clearly visible from the outside. 3. Services List. Each operator shall post and maintain a list of services available and the cost of such services in a conspicuous public place within the premises. No operator or responsible managing employee shall permit, CITY COUNCIL ORDINANCE NO. 1222 PAGE 22 OF 36 - and no massage technician shall offer or perform, any service other than those posted. 4. Lighting. Each operator shall provide in each room where massage is given sufficient lighting and ventilation that complies with the Uniform Building Code. The lighting in each massage room shall be activated at all times while the patron is in such room or enclosure. 5. Bath 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 running water at all times and shall be located within close proximity to the area devoted to the performing of massage services. A permanently installed soap dispenser, filled with soap, and a single service towel dispenser shall be provided at the restroom hand wash sink. No bar soap can be used. A trash receptacle shall be provided in each toilet room. Showers may be provided at the operator's option. 6. Separate Rooms. If male and female patrons are to be treated simultaneously at the same massage establishment, separate massage rooms shall be provided for male and female patrons. - 7. Maintenance. All facilities for the massage establishment must be in good repair and shall be thoroughly cleaned and sanitized each day the business is in operation. All walls, floors and ceilings of each restroom and shower area shall be made smooth and easily cleanable. No carpeting shall be installed in any of these areas. 8. Massage Table. A massage table shall be provided in each massage room and the massage shall be performed on this massage table. The tables should have a minimum height of 18 inches. Two-inch thick foam pads with maximum width of four feet may be used on a massage table and must be covered with durable, washable plastic or other waterproof material. Beds, floor mattresses and waterbeds are not permitted on the premises. B. Operations. 1. Equipment. Each operator and/or on-duty manager shall provide and maintain on the premises adequate equipment for disinfecting and sterilizing instruments used in massage. CITY COUNCIL ORDINANCE NO. 1222 PAGE 23 OF 36 2. Inspections. The operator and/or on-duty manager consents to the inspection of the massage establishment by the city's building and safety department, fire department and Police Department and the county health department for the purpose of determining that the provisions of this Chapter or other applicable laws or regulations are met. a. The city's building and safety department, 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. Routine inspections shall not occur more than twice a year, unless violations are found or complaints are received. Criminal investigations may be conducted as directed by the Police Chief. 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 subsection B.I8. of this section which would require the posting of the Notice To All Patrons. During an inspection, the Police Department may verify the identity of all on-duty employees. b. Inspections of the massage establishment shall be conducted during business hours. c. A person who operates a massage establishment or his or her agent, servant or employee commits an offense if he or she refuses to permit a lawful inspection of the premises by a representative of the Police Department at any time it is occupied or open for business. 3. Linen. Common use of towels or linen shall not be permitted. Towels and linen shall be laundered or changed promptly after each use. Separate cabinets or containers shall be provided for the storage of clean and soiled linen, and such cabinets or containers shall be plainly marked: "clean linen" and "soiled linen". No contraception devices, i.e. condoms or other prophylactic shall be allowed on the premises or possessed by any employee. 4. Sterilizing Equipment. Each massage technician shall provide and maintain at the location where the massage is performed adequate equipment for disinfecting and sterilizing instruments used in massage. 5. Living Prohibited. No person or persons shall be allowed to live inside the massage establishment at any time. All living quarters shall be CITY COUNCIL ORDINANCE NO. 1222 PAGE 24 OF 36 separate from the massage establishment. No food of any kind shall be prepared for sale or sold in the establishment unless an appropriate food vending permit is granted by the County of Riverside. 6. Alcoholic Beverages/drugs. No person shall enter, be in or remain in any part of a massage establishment licensed under this Chapter while in possession of, consuming, using or under the influence of any alcoholic beverage or controlled substance. The owner, operator and manager shall be responsible to ensure that no such person shall enter or remain upon the massage establishment. Service of alcoholic beverages shall not be permitted. 7. Recordings. No electrical, mechanical or artificial device shall be used by the operator 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 or consent of the patron. 8. Roster. The owner, operator or on-duty manager of the massage establishment shall keep a complete and current list of the names and residence addresses of all massage technicians and employees of the massage establishment and the name and residence addresses of the manager or managing employee purported to be principally in charge of the operation of the massage establishment. The above information on each employee shall be maintained in the register on the premises of the dwelling or residence out of which the home occupation massage business is conducted for a period of two years following termination. This roster shall be kept at and/or on the premises and be available for inspection by officials charged with enforcement of this Chapter. 9. Coverings. Each massage establishment shall provide to all patrons clean, sanitary and opaque coverings capable of covering the patrons specified anatomical areas, including the genital area, anus and female breast(s). No common use of such coverings shall be permitted, and re-use is prohibited unless adequately cleaned. 10. Records. Every person operating a massage establishment shall keep a record of the dates and hours of each treatment or service, the name and address of the patron, the name of technician administering such service and a description of the treatment or service rendered. A short medical history form shall be completed by the operator to determine if the patron has any CITY COUNCIL ORDINANCE NO. 1222 PAGE 25 OF 36 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 massage or treatment and shall be retained for a period of 2 years after such treatment or service. These records shall be open to inspection upon demand only by officials charged with enforcement of this Chapter and for no other purpose. The Police Department shall periodically inspect the records to ensure compliance with this section. The records shall be kept on the premises of the massage establishment for a period of two years. The information furnished or secured as a result of any such records should 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 of Lake Elsinore shall constitute a misdemeanor. 11. Hours of Operation. The owner must advise the city, in writing, at the time of application for a permit of the business hours and any changes in hours. No person shall operate a massage establishment or administer a massage in any massage establishment or at an outcall location booked by that massage establishment pursuant to Section 5.18.050C. between the hours of 8:00 p.m. and 7:00 a.m. A massage begun any time before 8:00 p.m. must nevertheless terminate at 8 :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. 12. Advertising. No massage establishment granted a permit under 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 patrons that any service is available other than those services described in this Chapter. Nor shall any massage establishment employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available other than those services authorized by this Chapter. 13. Insurance. No person shall engage in, conduct or carry on the business of a massage establishment unless there is on file with the Police Department, in full force and effect at all times, documents issued by an insurance company authorized to do business in the State of California evidencing that the CITY COUNCIL ORDINANCE NO. 1222 PAGE 26 OF 36 permittee is insured under a liability insurance policy providing mInImUm coverage of two million dollars ($2,000,000) for personal injury or death to one person arising out of the operation of any massage establishment and the administration of a massage. 14. Handicapped Areas. All massage establishments must comply with all state and federal laws and regulations for handicapped customers. 15. Compliance. Proof of compliance with all applicable provisions of the Lake Elsinore Municipal Code shall be provided. 16. Doors. All front, reception, hallway or front exterior doors (except back or exterior doors used solely for employee entrance to and exit from the massage establishment) shall be unlocked during business hours, except as may be permitted by applicable law (such as the Uniform Fire Code) which allow for safety doors which may be opened from the inside when locked. No massage may be given within any cubicle, room, booth or any area within a massage establishment which is fitted with a lock of any kind (such as a locking door knob, padlock, dead bolt, sliding bar or similar device), unless the only door is an exterior door. 17. Access. No person(s) other than valid permit holders under this Chapter and customers will be allowed anywhere in the massage establishment other than the lobby/reception area during hours of operation. Entry doors to any room shall not be obstructed by any means. 18. Discrimination. No massage establishment may discriminate or exclude patrons on the basis of their race, sex, religion, age, handicap or any other classification protected under federal or state laws, rules or regulations. 19. Prohibited Massage Areas. Except to the extent required in writing by a state-licensed medical practitioner, no massage technician, massage technician aide or other person shall massage the genitals or anal area of any patron or the breast( s) of any female patron, nor shall any operator or manager of a home occupation massage business allow or permit such massage. No home occupation massage business operator, while performing any task or service associated with the massage business, shall be present in any room with another person unless the person's genitals, gluteal crease, anus or, in the case of a female, her breast(s), are fully covered. CITY COUNCIL ORDINANCE NO. 1222 PAGE 27 OF 36 '- 20. Clothing. All persons employed in a massage establishment shall be fully clothed at all times while acting on behalf of the business or performing under the massage establishment permit. Clothing shall be of a fully opaque, non-transparent material and shall provide complete covering of their genitals, pubic area, buttocks, anal area and chest area. 21. Names. 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. 22. Display of Permits and Identification Cards. The home occupation massage business operator shall ensure that, at all times while conducting business for the home occupation massage business, each massage technician has his or her massage technician permit in their possession and wears or has in their possession the identification required by Section 5.18.050B.3. Such identification shall be provided to city regulatory officials upon demand. 23. Access. No person(s) other than valid permit holders under this Chapter and customers will be allowed anywhere in the massage establishment other than the lobby/reception area during hours of operation. Entry doors to any room shall not be obstructed by any means. 24. Operator Responsibility. Any act or omission of any employee constituting a violation of the provisions of this Chapter shall be deemed the act or omission of the operator for purposes of determining whether the operator's license shall be revoked, suspended, denied or renewed. 25. Licensed Massage Technicians. No operator shall employ any person as a massage technician who does not have a valid massage technician permit issued pursuant to this Chapter. Every operator shall report to the Police Chief any change of employees, whether by new or renewed employment, discharge or termination, on the form and in the manner required by the Police Chief. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within five days of the date of hire or termination. The operator shall deliver the permit and photo identification card of any massage technician no longer employed by the operator to the Police Chief within five days. 26. Notices. The Police Chief may require that the following notice be posted in the event that any employee of the massage establishment or CITY COUNCIL ORDINANCE NO. 1222 PAGE 28 OF 36 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 state court, to have violated any of the offenses listed in Sections 5.18.050 or 5.18.080K. NOTICE TO ALL PATRONS THIS MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION BY THE LAKE ELSINORE POLICE DEPARTMENT WITHOUT PRIOR NOTICE. a. issued by the Police Chief. b. The notices shall be conspicuously posted in a location within the massage establishment that are easily visible to any person entering the premises and in each massage room. The notice shall be so posted for 12 months following the violation of any of the offenses set forth above. The notice set forth above shall be prepared and c. The requirement for posting the notice described in this section is cumulative and in addition to all other remedies, violations and penalties set forth in this Chapter or in the ordinances, laws, rules or regulations of the City of Lake Elsinore, County of Riverside and the State of California. 5.18.100 Health certificate. A. Before issuing or renewing a certificate of registration, the Police Chief shall submit the name and address of the applicant to the county health officer and shall advise the applicant that he or she must report for examination or, alternatively, the applicant may report to a private medical doctor duly licensed to practice medicine in the State of California for examination. The Police Chief shall not issue a certificate until advised that the applicant has been examined by the county health officer or his or her private physician and has been found to be free of any contagious or communicable disease as defined in this Chapter. - B. In addition to the above requirements, upon submission of an initial application for a certificate of registration or upon annual renewal thereafter, the applicant shall submit to the Police Chief a certificate from a medical doctor stating that the applicant has, within 15 days immediately prior thereto, been CITY COUNCIL ORDINANCE NO. 1222 PAGE 29 OF 36 examined and found to be free of any contagious or communicable disease as defined in this Chapter; and if said applicant is not so found free of any contagious or communicable disease, his or her certificate of registration shall be revoked by the Police Chief. Failure to provide such health certificate shall result in revocation of certificate of registration held by applicant. C. For purposes of this Chapter, "contagious and communicable diseases" shall include tuberculosis and hepatitis A, Band C. D. Notwithstanding the above, if a person with a communicable disease wishes to be considered for licensing by the city, such individual must provide a report from an appropriate medical specialist concluding that, based upon a recent physical and review of medical records, allowing such individual to practice massage therapy would not interfere with the individual's treatment or health and that the individual's practice of massage therapy would not create a risk to patients, including patients with compromised immune systems. The report shall include any precautions recommended by the medical specialist. E. The report or certification of an appropriate medical specialist must provide a description of his or her specialty and practice and including a detailed description of the physical and medical history he or she conducted, including the results of any tests for such individual. 5.18.110 Changes of business. A. Every massage establishment operator shall report immediately to the Police Department any and all changes of ownership or management of the massage establishment or business, including, but not limited to, changes of manager or other person principally in charge, stockholders holding more than five percent of the stock of the corporation, officers, directors and partners and in any and all changes of name, style or designation under which the business is to be conducted and all changes of address or telephone numbers of the massage business. A change of location of any of the premises may be approved by the Police Chief, provided there is compliance with all applicable regulations of the City of Lake Elsinore. B. No massage technician permit or establishment 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 CITY COUNCIL ORDINANCE NO. 1222 PAGE 30 OF 36 permit and such permit shall thereafter be null 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 effecting a surrender or termination of such permit, and in such case, the permit, upon notification to the Police Chief, shall be placed in the name of the surviving partners. No massage technician permit may be sold, transferred or assigned by a permittee or any operation of law to any other person or persons. 5.18.120 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 Schedule, prescribing annual fees to be paid by the operator of each massage establishment, such fees to be paid directly to the health services agency of the County of Riverside and retained by the county as reimbursement for the services related to this Chapter, if the health service agency is utilized in the written or practical examination as described in Section 5.l8.070E. Fees required by this Chapter shall be in addition to any other required fees. - 5.18.130 Exemption; existing permittees. A. The requirements of this Chapter shall have no application and no effect upon and shall not be construed as applying to any persons designated as follows: state-licensed physicians, surgeons, chiropractors, physical therapists, osteopaths or any 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 without qualifications as massage technicians, whether employed by physicians, surgeons, chiropractors or osteopaths or not, may not give massage or massage procedures. B. Commencing on the effective date of this Chapter, all permits are to be issued in accordance with the provisions of this Chapter. C. Existing massage establishment operator's, manager's and massage technician's permits shall continue in effect until expiration. All existing massage technician permit holders shall have an additional 24 months from the effective date of this Chapter to meet and comply with the 720-hour training requirement. CITY COUNCIL ORDINANCE NO. 1222 PAGE 31 OF 36 D. Each owner or operator of a massage establishment legally doing business on the effective date of this Chapter shall apply for a permit not later than 90 days therefrom, and shall comply with all requirements which are prerequisites for issuance of a permit before such a permit may be issued. If a permit is denied for any such business, the business shall cease operation upon issuance of the Police Chiefs decision. 5.18.140 Transfer and duration of permits. A. No permit issued hereunder shall be transferable to any other person or establishment; provided, however, an additional location or change of location of a massage technician permit will be allowed upon prior written notice to the Police Chief and payment of the appropriate transfer fee. B. Permits for massage establishment operators, managers and technicians shall be renewed on a year- to-year basis, provided that the permittee continues to meet the requirements set out in this Chapter. C. Applications for the next ensuing permit shall be filed with the Police Chief before the expiration of the existing permit. Temporary permits will not be issued and renewal applications must be filed no later than 60 days prior to the expiration of the permit to prevent a lapse of the permit. D. Renewal applications shall require such information as may be required by the Police Chief to update the information contained in the original permit application. The applicant shall accompany the application for renewal with the appropriate filing fee. E. Every massage technician licensed under this Chapter shall annually complete at least 12 hours of continuing education courses in massage from schools or institutions as described in Section 5.18.070B. or C., or from equivalent organizations as determined by the Police Chief. Failure to complete such hours and submit proof of such completion in a form satisfactory to the Police Chief at the time of permit renewal shall be grounds for denial of permit renewal. The minimum requirement of 20 hours of continuing education courses to renew a permit is based on a 500-hour education recommendation for membership in the American Massage Therapists Association (AMTA). If recommended hours of education for membership in the AMT A increase, the number of continuing education hours for renewal of permits under this section shall increase in direct CITY COUNCIL ORDINANCE NO. 1222 PAGE 32 OF 36 proportion to the Increase of education hours required for membership in the AMTA. 5.18.150 Suspension, revocation, denial and appeal. A. Violation and Noncompliance. The Police Chief may refuse to renew a permit or may revoke or suspend an existing permit on the grounds that the applicant or permit holder has failed to comply with the permit conditions or other requirements of this Chapter. If a suspended permit lapses during the suspension period, a new application must be made at the end of the suspension period. In any such case, the applicant or permit holder shall have the right to appeal to the City Council in the time and manner set forth in this section. B. Revocation and Suspension of Massage Establishment or Manager Permit. 1. The Police Chief may revoke or refuse to renew an establishment or manager's permit if he or she makes any of the findings for denial of a permit under Section 5.18.050A., B.1. or B.7. upon any subsequent violation of any provision within one year following prior suspension under subsection B.2. below or upon demonstrated inability to operate or manage the massage establishment in a law abiding manner, thus necessitating action by law enforcement officers. 2. The Police Chief may suspend a massage establishment or manager's permit for a period of 30 days for each violation of Section 5.18.080B. not listed above or Section 5.18.090. C. Revocation and Suspension of Massage Technician Permit. 1. The Police Chief may revoke or refuse to renew a massage technician permit if he or she makes any of the findings for denial of a permit under Section 5.18.080A., B.1., B.2. or B.6., Section 5.18.090, or upon any subsequent violation of any provision of this Chapter within one year following a suspension under subsection C.2. below; 2. The Police Chief may suspend a massage technician permit for a period of 30 days for each violation of Section 5.18.080B. not listed above or Section 5.18.090. CITY COUNCIL ORDINANCE NO. 1222 PAGE 33 OF 36 D. Notice. When the Police Chief concludes that grounds for denial, suspension, revocation or refusal to renew a permit exist, the Police Chief shall serve the applicant or permit holder, either personally or by certified mail addressed to the business or residence address of applicant or permit holder, with a Notice of Denial or Notice of Intent to Suspend, Revoke or Refuse to Renew Permit. This notice shall state the reasons for the proposed action, the effective date of the decision, the right of the applicant or permit holder to appeal the decision to the City Council, and the decision will be final if no appeal is filed within the time permitted. E. Appeal. 1. The right to appeal to the City Council shall terminate upon the expiration of 15 days of the date of mailing of the notice. The notice of appeal is to be sent to the Police Department of the City of Lake Elsinore. 2. In the event an appeal is timely filed, the suspension or revocation shall not be effective until a final decision has been rendered by the City Council. If no appeal is filed, the suspension or revocation shall become effective upon expiration of the period for filing appeals. 3. The City Council of the City of Lake Elsinore may preside over the hearing on appeal or, in the alternative; the City Manager may appoint a hearing officer to conduct the hearing, receive relevant evidence and submit to the City Council findings and recommendations to be considered by the City Council. The City Council shall render its decision within 45 days from the date of the hearing or, in the event that a hearing officer has been appointed, within 45 days from the date on which the City Council receives the findings and recommendations of the hearing officer. The decision of the City Council shall be final. The applicant shall be entitled to notice of the basis for the proposed action, a copy of the documents upon which the decision was based and the opportunity to present contrary evidence at the hearing. If the denial is based upon failing the test, the applicant shall be entitled to review their test at the Police Department but shall not be entitled to a copy of the test. 4. Notice of the date, time and place of the hearing shall be mailed at least ten days prior to the date of the hearing, by u.S. mail, with proof of service attached, addressed to the address listed on the massage application, CITY COUNCIL ORDINANCE NO. 1222 PAGE 34 OF 36 massage technician application or the address given in the Notice of Appeal, as the case may be. 5. The following rules and evidence shall apply: a. Oral evidence shall be taken only under oath or affirmation. The hearing officer shall have authority to administer oaths and to receive and rule on admissibility of evidence; b. Each party shall have the right to call and examine witness, to introduce exhibit and to cross- examine opposing witnesses who have testified under direct examination. The hearing officer may call and examine any witness; c. 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 which 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 the 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. 6. No permit granted herein shall confer any vested right to any person or business for more than the permit period. All massage operators, managers and technicians subject to this Chapter shall comply with the provisions of this Chapter as they may be amended hereafter. 5.18.160 Violation and penalty. A. Violations of this Chapter may be enforced pursuant to the provisions of Chapter 1.20. 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, CITY COUNCIL ORDINANCE NO. 1222 PAGE 35 OF 36 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 establishment businesses and restrain and enjoin any person from operating, conducting or maintaining a massage establishment or contrary to the provisions of this Chapter. SECTION 2. If any provision, clause, sentence or paragraph of this Ordinance or the application thereof to any person or circumstance shall be held invalid, such invalidity shall not affect the other provisions of this Ordinance and are hereby declared to be severable. SECTION 3. This Ordinance shall take effect thirty (30) days after the date of its final passage. The City Clerk shall certify as to adoption of this Ordinance and cause this Ordinance to be published and posted in the manner required by law. INTRODUCED AND APPROVED UPON FIRST READING this 8th day of May 2007, by the following vote: AYES: COUNCILMEMBERS: HICKMAN, KELLEY, SCHIFFNER, MAGEE COUNCILMEMBERS: NONE NOES: ABSENT: COUNCILMEMBERS: BUCKLEY ABSTAIN: COUNCILMEMBERS: NONE PASSED, APPROVED AND ADOPTED UPON SECOND READING this 22ND day of May, 2007, upon the following roll call vote: AYES: COUNCILMEMBERS: BUCKLEY, HICKMAN, KELLEY, SCHIFFNER, MAGEE NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE ABSTAIN: COUNCILMEMBERS: NONE CITY COUNCIL ORDINANCE NO. 1222 PAGE 36 OF 36 A T]:r' \__ Jf(lJ{Qf0 lftfo Michelle 80to, Interim City Clerk City of Lake Elsinore