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Ordinance 2003-16 ORDINANCE NO. 2003-16 AN ORDINANCE OF THE CITY OF GILROY ADDING A NEW SECTION, ARTICLE VI [ENTITLED "REGULATION OF MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS"] TO CHAPTER 13 [ENTITLED "LICENSES"] . WHEREAS, the City of Gilroy ("City") has experienced multiple arrests for prostitution at local massage establishments; and WHEREAS, due to the aspects of personal bodily contact, massage activities raise issues of concern regarding health and safety issues; and, WHEREAS, the City wishes to provide for the orderly regulation of legitimate massage practitioners and establishments, and discourage prostitution and other unlawful activity which may be associated with a small minority of massage establishments; and, WHEREAS, the City finds that establishment of minimal professional qualifications and operating standards for massage practitioners and establishments will encourage the operation of legitimate massage therapy in the community; and WHEREAS, this Ordinance is exempt from environmental review pursuant to Section 15061 (b )(3) of the State Guidelines implementing the California Environmental Quality Act of 1970, as amended. NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, THE CITY COUNCIL OF THE CITY OF GILROY DOES HEREBY ORDAIN AND ENACT AS FOLLOWS: SECTION I That existing Gilroy City Code, Chapter 2A [entitled "Adult Businesses"], Section 2A(a)(11) entitled "Massage Parlor" is hereby repealed. SECTION II That existing Gilroy Zoning Ordinance, Section 28 [entitled "Adult Businesses"], Section 28.1 0(a)(11) entitled "Massage Parlor" is hereby repealed. SECTION III That a new Article VI [entitled "Regulation of Massage Establishments and Massage Practitioners"] is hereby added to Chapter 13 [entitled "Licenses"] to the Gilroy City Code to read as follows: IJH\598734.2 01-081803-04706002 -1- ORDINANCE NO. 2003-16 ARTICLE VI. Sec. Sec. Sec. Sec. Sec.13.51 Sec.13.52 Sec.13.53 Sec.13.54 Sec.13.55 Sec.13.56 Sec.13.57 Sec.13.58 Sec.13.59 Sec.13.60 Sec.13.61 Sec. 13.62 Sec. 13.63 Sec.13.64 IJH\598734.2 01-081803-04706002 REGULATION OF MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS 13.4 7 Purpose and Intent. 13.48 Definitions. 13.49 Exemptions. 13.50 Permit requirements for Massage Establishments, Managing Employees and Massage Practitioners. Educational requirements for Massage Practitioners, and holders of Massage Establishment Permits and Managing Employee Permits. Applications for Massage Establishment Permits, Managing Employee Permits and Massage Practitioner Permits. Grant or denial of application for Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit. Business license. Operating requirements for Massage Establishments. Sanitation requirements/condition of premises. Prohibited acts. Out-call Massage Services. Transfer of Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit. Expiration and renewal of Massage Establishment Permits, Managing Employee Permits and Massage Practitioner Permits/payment of renewal fee. Suspension and revocation of Massage Establishment Permits, Managing Employee Permits and Massage Practitioner Permits. Criminal penalties. Massage Establishment operated in violation of this Article deemed a public nUIsance. Application of this Article to preexisting Massage Establishments and persons holding valid Massage Practitioner Permit before effective date of this Article/Two-year time period for holders of preexisting permits to meet new educational requirements. -2- ORDINANCE NO. 2003-16 Sec. 13.47. Purpose and intent. (a) Purpose. (1) In enacting these regulations, the City of Gilroy City Council ("City Council") recognizes that massage is a viable professional field offering the public valuable health and therapeutic services. (2) It is the purpose and intent of the City Council that the operation of Massage Establishments and persons offering massage be regulated in the interests of public health, safety, and welfare by providing minimum building, sanitation, and health standards and to ensure that persons offering massage shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered. (3) It is the intent of this Article VI to enact regulations to insure that those offering massage services are qualified and trained and can be expected to conduct their work in a lawful and professional manner. The City Council finds that existing controls have not satisfactorily addressed or regulated serious police problems, nor have the existing controls regulated the profession so as to discourage the use of the profession for objectionable and illegal purposes. (b) Conflicts with other Provisions of this Code. In the event of any conflicts or inconsistencies between the provisions of this Article VI and the remaining provisions of this Chapter 13 or with the provisions of any other chapter(s) of the City Code, the provisions of this Article VI shall control, unless to do so would be inconsistent with the stated purpose of this Article VI. (c) Responsibility for enforcement. The primary responsibility for enforcement of the provisions of this Article VI shall be vested in the Chief of Police. Sec. 13.48 Definitions. For purposes of this chapter, the following words, terms and phrases are defined as follows: City Administrator means the city administrator of the City of Gilroy, or his or her designee. Managing Employee means any employee of a Massage Establishment who has been designated by the holder of the Massage Establishment Permit to manage the business in his/her absence. The Managing Employee may perform massages at the business only if he/she obtains and maintains in effect a Massage Practitioner Permit. Massage means any method of treating the external parts of the human body by bathing, rubbing, pressing, stroking, kneading, tapping, vibrating, or touching or stimulating with the hands or any part of the body, or any instrument. IJH\598734.2 01-081803-04706002 -3- ORDINANCE NO. 2003-16 Massage Establishment means any establishment, having a fixed place of business in the City in which massages are given in return for compensation of any type, including but not limited to any hot tub/sauna establishment in which massage services are made available to clients. Massage Practitioner means any person, including a non-medical massage practitioner or a certified massage therapist, who performs massage in return for compensation of any type who has completed a minimum of two hundred (200) or more verifiable hours in a resident course of study from a Recognized School on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology and hygiene, with at least seventy-five (75) hours of the required two hundred (200) hours in the areas of demonstration and practice of massage techniques from a Recognized School, and which provides a diploma or certificate of completion upon successful completion of such resident course of study. Out-call Massage Service means any business which provides massage services at a location designated by the customer or client or the Massage Practitioner or the Out-call Massage Service, other than at a designated approved Massage Establishment. Person means any individual, partnership, firm, association, corporation, joint venture or any other combination of individuals for the purpose of doing business. Police Chief means the Gilroy Police Chief or his or her designee. Recognized School means any school or institution of higher learning which has been approved pursuant to California Education Code Section 94300 et seq. or other applicable state law or regulations of California or another state, or any public school recognized by the International Massage Association Inc, Associated Bodyworker and Massage Professionals Inc, American Massage Therapy Association Inc, National Certification Board of Therapeutic Massage, or other recognized association which requires a resident course of study of a minimum of two hundred (200) verifiable hours on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology and hygiene, with at least seventy-five (75) hours of the required two hundred (200) hours in the areas of demonstration and practice of massage techniques, and which provides a diploma or certificate of completion upon successful completion of such course of study. Schools offering correspondence course(s) nor requiring actual attendance of class shall not be deemed a Recognized School. The City shall have the right to confirm the fact that the applicant has actually attended classes in a Recognized School for the aforementioned minimum time period. Sec. 13.49 Exemptions. The provisions ofthis chapter shall not apply to: (a) Physicians, surgeons, chiropractors, osteopaths, nurses, physical therapists or other health professionals who are duly licensed to practice their respective professions under the laws of the State of California. (b) Massage Practitioners and Massage Practitioner trainees who are performing massage In the offices of a licensed physician, surgeon, chiropractor, osteopath, physical IJH\598734.2 01-081803-04706002 -4- ORDINANCE NO. 2003-16 therapist or other licensed medical professional, or at a hospital, nursing home, convalescent home, hospice or sanitarium when and while under the direct supervision of a licensed medical professional. Massage Practitioners who are independent contractors of chiropractors are not exempt from this Article. (c) Barbers or cosmetologists who are duly licensed under the laws of the State of California while performing massage within the scope of their licenses. (d) Massage Practitioners who perform massages which are clearly incidental to the operation of a personal fitness training center, gymnasium, athletic facility or health club, when the giving of massage for compensation is not a principal function of such businesses. In determining whether massage constitutes a principal or incidental function of personal fitness training centers, gymnasiums, athletic facilities or health clubs, the Police Chief shall consider the following: the percent of income derived from massages, including the amount of floor space devoted to the massage business, said floor space and income percentages shall not exceed twenty-five percent (25%); the number of employees assigned to massage services; and the manner in which the business advertises and holds itself out to the public. The decision of the Police Chief regarding whether a particular business is entitled to exemption may be appealed to the City Administrator through the procedures set forth in Section 13.53. ( e) Persons administering massages or health treatments involving massage to other persons who are participating in a recreational or special event that has been approved by the City, provided that the following conditions are met: (1) The massage services are made available equally to all participants in the event; (2) The event is open to participation by the general public or a significant segment of the public; (3) The massage servIces are provided during the event In an open environment at the site of the event; (4) The sponsors of the event have approved the provlSlon of massage services at the event; and (5) The persons providing the massage services are in compliance with all applicable City Codes and other laws. Sec. 13.50 Permit requirements for Massage Establishments, Managing Employees and Massage Practitioners. (a) Massage Establishment Permits. No person shall establish, operate or maintain a Massage Establishment within City limits without first obtaining from the Police Chief, and maintaining in effect, a Massage Establishment Permit. It is unlawful to operate, establish or maintain a Massage Establishment while the Massage Establishment Permit issued for such business has been suspended or revoked or has expired. IJH\598734.2 01-081803-04706002 -5- ORDINANCE NO. 2003-16 (b) Managing Emplovee Permit. No person shall act as the Managing Employee for a Massage Establishment within City limits unless he/she has obtained a Managing Employee Permit from the Police Chief. It is unlawful for any person to act as the Managing Employee of a Massage Establishment while his/her Managing Employee Permit has been suspended or revoked, or has expired. (c) Massage Practitioner Permit. No person shall practice massage or give massages in return for compensation of any type within City limits without obtaining from the Police Chief and maintaining in effect a Massage Practitioner Permit. It is unlawful for any person to practice massage or give massages in return for compensation while his/her Massage Practitioner Permit has been suspended or revoked, or has expired. (d) A person who obtains a Massage Establishment Permit, or a Managing Employee Permit and plans to personally give massages at the business shall also apply for and obtain a Massage Practitioner Permit. Sec. 13.51 Educational requirements for Massage Practitioners, and holders of Massage Establishment Permits, and Managing Employee Permits. (a) General educational requirements. Except as indicated below, all applicants for a Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit must meet either of the following educational standards in order to qualify for such permit: (1) Possession of a diploma or certificate of completion from a Recognized School which shows satisfactory completion of a resident course of study of a minimum of two hundred (200) verifiable hours on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology and hygiene, with at least seventy-five (75) hours of the required two hundred (200) hours in the areas of demonstration and practice of massage techniques; or (2) Possession of a diploma or certificate of completion from a Recognized School or public school showing satisfactory completion of a minimum of two hundred (200) verifiable hours or more of a non-repetitive curriculum which covers the subjects described in subsection 1 above, and a transcript or transcripts from a college or junior or community college in the State of California, or a college or junior or community college in another state from which courses would be acceptable for transfer credit to any college in the California State University and College System, which shows completion, with a passing grade or better, of at least eight (8) quarter units or six (6) semester units of courses in health theory, health care, anatomy, physiology, psychology, bio-mechanics or kinesiology. (b) Exemptions from educational requirements. The following persons are exempt from the educational requirements set forth in subsection (a): (1) Applicants for a Massage Establishment Permit or Managing Employee Permit who sign a declaration under penalty of peIjury that they will not personally give massages at the Massage Establishment; or IJH\598734.2 01-081803-04706002 -6- ORDINANCE NO. 2003-16 (2) Holders of Massage Establishment business licenses and Massage Practitioner business licenses issued by the City before the effective date of this Article shall have a period of two (2) years from the effective date of this Article to satisfy the educational requirements set forth in subsection (a). Sec. 13.52 Applications for Massage Establishment Permits, Managing Employee Permits, and Massage Practitioner Permits. (a) Submission of application. All persons who wish to obtain a Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit from the City shall file a written application with the Police Chief on a form provided by the City, which contains the following information: . (1) The full name, including any nicknames or other names used presently or in the past, and the present address and phone number of the applicant; (2) The applicant's two (2) most recent addresses within the last seven (7) years, and the dates of residence at each address; (3) Proof the applicant is over eighteen (18) years of age; (4) The applicant's height, weight and colors of eyes and hair; (5) The applicant's driver's license and/or California I.D. number (if any) and social security number; (6) Documentation to prove that the applicant has a lawful right to work in the United States, which shall also include work visas; (7) The applicant's two (2) most recent employers within the last seven (7) years, including their names, addresses and phone numbers, and the position held by the applicant; (8) The names and addresses of any massage facility or other businesses involving massage by which the applicant has been employed, or self employed as a Massage Practitioner, within the past ten (10) years; (9) Any criminal conviction on the part of the applicant for offenses other than traffic violations within the ten (10) years preceding the date of the application; (10) Any criminal charges pending against the applicant at the time of the application, other than traffic citations, the name and location of the court in which the criminal charges are pending and the applicable case numbers; (11) Whether the applicant has ever had a license, certificate or permit related to the practice of massage, or the operation of a Massage Establishment, or other business involving the practice of massage, suspended or revoked within the ten (10) years preceding the date of the application, the dates and reasons for any such suspensions or revocations, and the IJH\598734.2 01-081803-04706002 -7- ORDINANCE NO. 2003-16 name and location of the jurisdiction or public agency which suspended or revoked such license, permit or certificate; (12) Whether the applicant, including the Massage Establishment, Managing Employee or Massage Practitioner Permit applicant, as a member of a corporation or partnership, has ever operated or been employed at any business which has been the subject of an abatement proceeding under the California Red Light Abatement Act (California Penal Code Sections 11225 through 11325) or any similar laws in other jurisdictions. If the applicant has previously worked at such a business, he/she should state on the application the name and address of the business, the dates on which the applicant was employed at such business, the name and location of the court in which the abatement action occurred, the applicable case number and the outcome of the abatement action; (13) Whether the applicant provided sufficient information to the City's satisfaction that they meet the educational requirements set forth in Section 13.51 (except in cases involving applications for Massage Establishment Permits, or Managing Employee Permits, when the applicant has filed a statement under penalty of peIjury that he/she will not personally give massages at the Massage Establishment); (14) Whether the applicant has previously applied to the City for a Massage Establishment Permit, Managing Employee Permit, or Massage Practitioner Permit, the date of the previous application and any other name(s) under which the application was made; (15) In the case of an application for a Massage Establishment Permit or Managing Employee Permit, the proposed name and address of the Massage Establishment, together with the name and address of any other massage business operated or managed by the applicant or in which the applicant has or had a business interest, within the ten (10) years preceding the date of the application; (16) 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/her property. (17) Proof of malpractice insurance in the sum of not less than one hundred thousand dollars ($100,000.00) per massage therapist licensed, or to be licensed, at the Massage Establishment up to a maximum of five hundred thousand dollars ($500,000.00); this requirement can be satisfied by malpractice insurance being provided in the name of individual Massage Practitioner. (18) In the case of an application for a Massage Establishment Permit or Managing Employee Permit, whether the applicant intends to personally provide massage services at the business; (19) Written authorization for the City, its agents and employees, to seek information and to conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant and the Managing Employee; IJH\598734.2 01-081803-04706002 -8- ORDINANCE NO. 2003-16 (20) The applicant shall advise the City in writing of any change of address or change in fact(s) represented to City which may occur during the City's processing of the application for a Massage Establishment Permit; and (21) A statement under penalty of peIjury that the applicant has not knowingly and with the intent to deceive made any false, misleading or fraudulent statements or omissions of fact in his/her application or any other documents required by the City to be submitted with the application. (b) Other required information. Applicants for Massage Establishment Permits, Managing Employee Permits and Massage Practitioner Permits shall also submit the following information to the Police Chief at the time of their application: (1) A birth certificate or other legal documentation that verifies the identity of the applicant and verifies that the applicant is over eighteen (18) years of age; (2) A certificate that verifies that the applicant passed the County Health Department's protocol; (3) A diploma, certificate of completion, transcripts from each school or institution from which the Massage Practitioner has obtained training or other written proof acceptable to the Police Chief that the applicant has met the educational requirements set forth in Section 13.51. Diplomas, certificates of completion and transcripts shall indicate the number of hours or training received by the certificate holder. In the case of applications for a Massage Establishment Permit or Managing Employee Permit only, the applicant may, if applicable, submit to the Police Chief with his/her application a written statement under penalty of peIjury that he/she will not personally give massages at the Massage Establishment; (4) Other related information requested by the Police Chief in order to evaluate the background and qualifications of the applicant for the permit sought. This may include information or documentation to indicate whether the Massage Establishment or Massage Practitioner is affiliated with or a member of any recognized national or state massage therapy association or organization. ( c) Payment of permit fees. At the time of filing an original application for a Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit, applicants shall pay Massage Establishment Permit fees, Managing Employee Permit fees or Massage Practitioner's Permit fees (as applicable) in an amount established by a resolution of the City Council. All fees shall be non-refundable. If an applicant for a Massage Establishment Permit or Managing Employee Permit is simultaneously applying for a Massage Practitioner Permit because he/she intends to give massages at his/her business, the City shall not charge any additional fees related to the Massage Practitioner Permit. (d) Processing of application and investigation. Upon receipt of an application for a Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit, the Police Chief shall review the application and supplementary material. If it is clear from the face of the application and supplementary materials that the applicant is not qualified for a permit, or the application is incomplete, the application may be denied without further investigation. If it IJH\598734.2 01-081803-04706002 -9- ORDINANCE NO. 2003-16 appears from the face of the application and supplementary material that the applicant may be eligible for the permit sought, the Police Chief shall verify the information submitted by the applicant and shall further investigate the qualifications of the applicant as follows: (1) Photographs/fingerprints/review of criminal history. The Police Chief shall either require two (2) passport style photographs and/or take a recent photograph of the applicant. Applicant shall also be responsible for submitting fingerprints pursuant to "LifeScan" procedures with the County Sheriffs Office and pay all costs associated with such submittal. The applicant's fingerprints will then be submitted to the Department of Justice and the Federal Bureau of Investigation (FBI) for evaluation. Upon receipt of the report from the Department of Justice and the Federal Bureau of Investigation (FBI), the Police Chief shall review the criminal history (if any) ofthe applicant. (2) Investigation of location and premises of Massage Establishment or Permit. Upon receipt of an application for a Massage Establishment Permit, the Police Chief shall refer the application to the City's fire, building and community development departments, who shall review the application and, if necessary, inspect the premises to ensure that the operation of the business at the designated site will comply with the City's zoning, building and fire safety standards, and any other applicable City Codes. If a use permit is required for the Massage Establishment the applicant shall comply with the City's Zoning Code. (3) Additional investigation. The Police Chief may conduct additional investigation in a manner authorized by law when necessary to determine whether the applicant meets the qualifications for a permit pursuant to this article. Sec. 13.53 Grant or denial of application for Massage Establishment Permit, Managing Employee Permit, Massage Practitioner Permit. (a) Time for grant or denial of applications. The Police Chief shall grant or deny the application for a Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit within sixty (60) days of the applicant's submission of the application and all required supplementary material. When necessary to conduct a complete investigation of an application, the Police Chief may extend this time to ninety (90) days. (b) Grounds for denial of Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit. The Police Chief shall deny an application for a Massage Establishment, Managing Employee Permit or Massage Practitioner Permit if any of the following circumstances exist: (1) The application is incomplete and/or required supplementary materials are not submitted on a timely basis; (2) The applicant does not have the required educational qualifications, unless the applicant is exempted from these requirements pursuant to Section 13.51(b); (3) The applicant has previously had a Massage Establishment Permit, Managing Employee Permit, Massage Practitioner Permit or similar license, certificate or permit revoked by the City or any other public agency; IJH\598734.2 01-081803-04706002 -10- ORDINANCE NO. 2003-16 (4) The applicant has made a false, misleading or fraudulent statement or omission of fact in his/her application or other materials submitted with the application; (5) The applicant, including applicant as a corporation or partnership, or former employer of the applicant while the applicant was so employed, has been successfully prosecuted in an abatement proceeding under the California Red Light Abatement Act (Penal Code Sections 11225 through 11325) or any other similar laws in another jurisdiction; (6) The applicant has been convicted of: (A) An offense which requires registration pursuant to California Penal Code Section 290; or a violation of Sections 266(h), 266(i), 311 through 311.7, 314, 315, 316, 318 or 647(b), 647(d), 647(f) 647.1 of the California Penal Code, or equivalent offenses under the laws of another jurisdiction; (B) A prior offense which involves violation of California Health and Safety Code Sections 11351 through 11354, 11358 through 11363, 11378 through 11380, or the sale of controlled substances specified in California Health and Safety Code Sections 11054, 11056, 11057 or 11058, or equivalent offenses under the laws of another jurisdiction; (C) Any offense involving dishonesty, fraud, deceit or the use of force or violence upon another person; or (D) Any offense involving sexual misconduct with children. (E) For purposes of this section, a plea of "nolo contendere" may also serve as the basis for the denial of a Massage Establishment Permit, Massage Practitioner Permit or Managing Employee Permit because the above-listed underlying offenses bear a substantial relationship to the qualifications, functions or duties of a Massage Establishment. (7) The operation of the Massage Establishment would violate the City's zoning, building or fire regulations, or other provisions of law or the City Code. (c) Notice to applicant of grant or denial of application. The Police Chief shall give written notice to the applicant of the grant or denial of the application for a permit by certified mail or by personal service. If the application is denied, the notice shall advise the applicant of the reasons for the denial and of his/her right to appeal the decision to the City Administrator through the procedures set forth in subsection (d), below. (d) Appeal of denial of Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit to City Administrator. Upon the denial of an application for a Massage Establishment Permit, Managing Employee Permit or a Massage Practitioner Permit by the Police Chief, the applicant may appeal to the City Administrator through the following procedures: (1) Request for appeal hearing. The applicant shall file a written request for an appeal hearing, which states the specific grounds on which the decision of the Police Chief to deny the permit is contested, with the City Administrator's office within ten (10) days of the IJH\598734.2 01-081803-04706002 -11- ORDINANCE NO. 2003-16 personal service of the Police Chiefs decision to the applicant at the most recent home or business address on file with the police department, or within ten (10) days of service of the Police Chiefs decision in the United States mail by certified mail. (2) Notice of time and place of hearing. Upon receipt of a timely request for an appeal hearing, the City Administrator's office shall notify the applicant in writing of the date, time and place of the hearing before the City Administrator, which shall not be less than ten (10) days after the service of such written notice on the applicant by in-person delivery at the most recent home or business address on file with the city or ten (10) days after the deposit of the notice in an envelope addressed to the applicant in the United States mail by certified mail. (3) Hearing before City Administrator. At the hearing, both the applicant and the Police Chief shall have the right to appear and be represented by counsel, and to present evidence and arguments relevant to the grounds on which the decision to deny the application is appealed. The burden of proof shall be on the applicant to show that he/she meets the qualifications for a Massage Establishment Permit, Managing Employee Permit, Massage Practitioner Permit and is entitled to the issuance of such permit. (4) Decision of City Administrator. Within ten (10) days of the hearing, the City Administrator shall issue a written decision, which states whether the decision of the Police Chief to deny the application is upheld or reversed, and the reasons for this determination. The decision shall be served upon the applicant by personal service or by certified mail. The decision of the City Administrator shall be final and conclusive upon the applicant. Sec. 13.54 Business license. It is unlawful for any person to open or operate a Massage Establishment without obtaining and maintaining in effect a City business license. Sec. 13.55 Operating requirements for Massage Establishments. Unless otherwise specified herein, all Massage Establishments shall comply with the following operating requirements. (a) Exterior signs. A recognizable and legible sign should be posted at the main entrance identifying the business as a Massage Establishment. Such sign need not be the primary sign for the business, but should clearly identify the establishment to foot and/or automobile traffic. (b) Posting of Massage Establishment Permit. A copy of the Massage Establishment Permit shall be posted in a conspicuous place in such a manner that it can easily be seen by persons entering the Massage Establishment. ( c) Designation of Managing Employee. If the holder of the permit will not personally manage the business during all hours of operation, he/she shall designate one (1) or more Managing Employees who shall be in charge of the operation of the business during his/her absence. If the Managing Employee(s) will personally give massages at the business, he/she must also obtain a Massage Practitioner Permit. IJH\598734.2 01-081803-04706002 -12- ORDINANCE NO. 2003-16 (d) Display of Managing Employee Permit. If the holder of the permit has designated a Managing Employee, the Managing Employee Permit issued to this employee shall be displayed in a conspicuous place on the premises of the Massage Establishment. Each Managing Employee Permit holder shall be issued a photo identification badge from the City's Police Department. (e) Display of Massage Practitioner Permit. Every Massage Practitioner employed by the Massage Establishment shall hold a valid Massage Practitioner Permit issued by the City's Police Department. Each Massage Practitioner Permit holder shall be issued a photo identification badge from the City's Police Department. The Massage Practitioner Permit holder shall display the identification badge on his/her person during business hours, or have the identification badge displayed in plain view. (f) Dressing room. Clients of the Massage Establishment shall be furnished with a dressing room, or private area for changing clothes if a dressing room is not available. Dressing rooms shall be used only by clients ofthe same sex at the same time. (g) Payment/tips. All massage services shall be paid for in the reception area, and all tips, if any, shall be paid for in the reception area. Massage Establishments may utilize a system where tip envelopes are provided in the treatment rooms to be utilized and deposited by the client in the reception area. (h) Alcohol prohibited. No alcoholic beverages may be possessed or consumed on the premises ofthe Massage Establishment. (i) No condoms. No condoms shall be kept at the Massage Establishment unless they are the personal property of persons on-site, and they are for the individual's personal use. (j) Standard of dress. The holder of the Massage Establishment Permit, Managing Employee, Massage Practitioners, and all other employees of the Massage Establishment shall remain fully clothed at all times while on the premises of the Massage Establishment. At a minimum, such clothing shall be made of a non-transparent material and shall not expose the buttocks, genital area or breasts of any employee or the holder of the permit. Bikini swimsuits and halter tops shall not be acceptable. (k) Operating hours. All Massage Establishments shall be closed for business by no later than 10:00 p.m. and shall open for business no earlier than 6:00 a.m. The City may set the specific operating hours for each Massage Establishment through the conditional use permit process. It shall be unlawful for any Massage Practitioner, or other employee of a Massage Establishment, to give or practice massage during the hours when the Massage Establishment is required to be closed. (1) List of services. A list of services available and the cost of such services shall be posted in an open public place within the premises, and they shall be described in readily understandable language. No owner, operator, manager, and/or responsible, Managing Employee shall permit, and no Massage Practitioner shall offer or perform, any service other than those posted. IJH\598734.2 01-081803-04706002 -13- ORDINANCE NO. 2003-16 (m) Records. Every Massage Establishment shall keep a written record of the date and hour of each service provided; the first and last name of each patron and the service received; and the first and last name of the Massage Practitioner administering the service. Said records shall be open to inspection to City officials, including, but not limited to the Police Department and the City Attorney's office, which is charged with enforcement of this Article VI. These records may not be used by the Massage Establishment for any other purpose than as records of service provided, and unless otherwise required by law, they shall not be provided to third parties by the Massage Establishment. Said records shall be retained on the premises of the Massage Establishment business office for a period of not less than three (3) years. Sec. 13.56 Sanitation requirements/condition of premises. (a) Required maintenance of Massage Establishments. All premises and facilities of the Massage Establishments shall be maintained in a clean and sanitary condition and shall be thoroughly cleaned after each day of operation. The premises and facilities shall meet applicable code requirements of the City, including but not limited to those related to the safety of the structure, adequacy of the plumbing, heating, ventilating and waterproofing of rooms in which showers, water or steam baths are used. (b) Linens. All Massage Establishments shall provide clean, laundered sheets, towels, and other linens in sufficient quantity for use by their clients. Such linens shall be laundered after each use and stored in a sanitary manner. No common use of linens or towels shall be permitted. Heavy white paper may be substituted for sheets on massage tables, so long as such paper is used only once for each client and is then discarded into a sanitary receptacle. Sanitary receptacles shall be provided for the storage of all soiled linens. (c) Privacy standards for massage rooms, dressing rooms and rest rooms. Dressing rooms and rest rooms may only be used by clients of the same sex at the same time. The Massage Establishment shall provide doors on all of its dressing rooms and massage rooms. Draw drapes, curtain enclosures or accordion-pleated enclosures are acceptable in lieu of doors for dressing and massage rooms. (d) No residential use. No part of the Massage Establishment shall be used for residential or sleeping purposes. No cooking or food preparation will be allowed on the premises unless it is within an employee only designated kitchen area. Sec. 13.57 Prohibited acts. (a) Touching of sexual and genital parts of client during massage. No holder of a Massage Establishment Permit, Managing Employee, Massage Practitioner, or any other employee of a Massage Establishment shall place either his/her hand or hands upon, or touch with any part of his/her body, a sexual or genital part of any other person in the course of a massage, or massage a sexual or genital part of any other person. Sexual and genital parts shall include the genitals, pubic area, anus or perineum of any person or the vulva or breast of a female. (b) Uncovering and exposure of sexual and genital parts before, during or after massage. No holder of a Massage Establishment Permit, Managing Employee, Massage IJH\598734.2 01-081803-04706002 -14- ORDINANCE NO. 2003-16 Practitioner, or other employee of a Massage Establishment shall uncover and expose the sexual or genital parts, as defined in subsection (a), above, of a client or themselves in the course of giving a massage, or before or after a massage. This subsection does not prohibit a client from turning over in the course of a massage, so long as the Massage Practitioner holds a towel, sheet, blanket or other drape over the client to protect his/her genital and sexual parts from exposure. Sec. 13.58 Out-call Massage Services. (a) Massage Establishment Permit required for Out-call Massage Services with massage facility or principal place of business located within City limits. It is unlawful to establish or operate an Out-call Massage Service which maintains or operates a facility at which massages are given or are made available to clients within City limits, or whose principal place of business is located within City limits, without obtaining and maintaining in effect a Massage Establishment Permit from the Police Chief. Such Out-call Massage Services must comply with all provisions of this Article applicable to Massage Establishments. (b) Massage Establishment Permit not required for Out-call Massage Services with massage facility or principal place of business not located within City limits. A Massage Establishment Permit shall not be required for any Out-call Massage Service which does not operate or maintain a facility at which massages are given or made available to clients, or maintain a principal place of business within City limits. (c) Massage Practitioner Permit required for Massage Practitioners dispatched into City limits by out-of-town Out-call Massage Services. Any Massage Practitioner dispatched to give massages at locations within City limits from an Out-call Massage Service located within or outside of City limits must obtain and maintain in effect a Massage Practitioner Permit pursuant to Section 13.50(c) and must comply with all applicable provisions of this Article. The provisions of Section 13.55, except for subsection (j), and Section 13.56 shall not apply to such Out-call Massage Practitioners. Such Massage Practitioners shall maintain their certificates upon their persons, or within their immediate reach, at all times while performing massage in the City and shall display these upon the request of any City police officer. (d) Special procedures for Massage Practitioners dispatched to hotels or motels in Citv limits bv Out-call Massage Service. Massage Practitioners may be dispatched to hotels or motels within the City limits by any Out-call Massage Service only by the direct arrangement of the hotel or motel in conjunction with an incidental service regularly provided by the hotel or motel and only if the Out-call Massage Service and Massage Practitioners have first obtained a permit(s) as required by this chapter. Sec. 13.59 Transfer of Massage Establishment Permit, Managing Employee Permit, Massage Practitioner Permit. No Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit issued pursuant to this Article shall be transferred or assigned in any manner, whether by operation of law or otherwise, from location to location or from person to person, except that any person possessing a valid Massage Practitioner Permit shall be able to move from one employer IJH\598734.2 01-081803-04706002 -15- ORDINANCE NO. 2003-16 to another without filing a new application or paying a new fee, so long as the permit holder notifies the Police Chief of the change in his/her employment within five (5) days. Sec. 13.60 Expiration and renewal of Massage Establishment Permits, Managing Employee Permits, and Massage Practitioner Permit; payment of renewal fee. (a) All Massage Establishment Permits, Managing Employee Permits, and Massage Practitioner Permits shall expire on July 31 sl following the date of their issuance, unless revoked sooner by the Police Chief. Applications for renewal of a permit must be submitted to the Police Chief by no later than sixty (60) days before the expiration of such permit on a form provided by the police department, which shall require the applicant for renewal to update the information contained in his/her original application. The applicant must pay the City a non-refundable renewal fee, in the amount established by resolution of the City Council, at the time of filing his/her application for renewal. After investigating the application for renewal, the Police Chief may renew the Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit if the applicant continues to meet the standards for the issuance of a permit, and none of the grounds for denial of a permit set forth in Section 13 .53(b) exist. The Police Chief shall give the applicant for renewal written notice of his /her decision within sixty (60) days of the submission of the application for renewal to the police department by personal service of the decision to the applicant at his/her most recent home or business address on file with the police department or deposit of the decision in the United States mail by certified mail. If the application is denied, the notice shall state the specific grounds for the denial and that the applicant may appeal to the City Administrator through the procedures set forth in Section 13.53(d). If the holder of a Massage Establishment Permit, Managing Employee Permit or a Massage Practitioner Permit does not file a timely application for renewal (sixty (60) days before expiration of the permit), he/she shall be required to file an application for a new permit pursuant to Section 13.52 and to pay the applicable fees. Sec. 13.61 Suspension and revocation of Massage Establishment Permits, Managing Employee Permits and Massage Practitioner Permits. (a) Grounds for suspension or revocation of Massage Establishment Permit or Managing Employee Permit. The Police Chief may suspend for a period of up to nine (9) months or revoke a Massage Establishment Permit, or Managing Employee Permit, according to procedures set forth in subsection (c) below, if there is probable cause to believe that: (1) The permit holder has operated or managed the Massage Establishment in a manner which violates any provision of this Article, or other applicable City Code provisions, state or federal law; (2) The permit holder has committed any offense involving lewdness, indecent exposure or prostitution, or any other offense which would be grounds for denial of an application for a Massage Establishment Permit or Managing Employee Permit pursuant to Section 13.53, or employees ofthe Massage Establishment have committed such offenses in the IJH\598734.2 01-081803-04706002 -16- ORDINANCE NO. 2003-16 course of their employment and the permit holder has permitted them to do so or has failed to prevent them from doing so; (3) Has made a false or misleading statement or omission of fact on his/her application for a Massage Establishment Permit, Managing Employee Permit or for renewal of the permit, or in any supplementary materials submitted with the application; or (4) Is operating or managing the Massage Establishment in a manner which poses a danger to the health and safety of clients and/or the public, or without due regard for proper sanitation or hygiene. (b) Grounds for revocation or suspension of Massage Practitioner Permit. The Police Chief may suspend for a period of up to nine (9) months or revoke a Massage Practitioner Permit according to the procedures set forth in subsection (c), below, if there is probable cause to believe that: (1) The Massage Practitioner has violated any provision of this Article, or other applicable provisions of the City Code; (2) The Massage Practitioner has committed any violation of law related to lewdness, indecent exposure, prostitution or any offense which would be grounds for denial of an application for a Massage Practitioner permit pursuant to Section 13.53(b); (3) The Massage Practitioner has made a false or misleading statement or omission of fact on his/her application for a permit or for renewal of a permit or in any supplementary materials submitted with such applications; or (4) The Massage Practitioner has practiced massage in a manner which poses a danger to the health and safety of clients or the public, or without due regard for proper sanitation or hygiene. (c) Procedure for revocation or suspension of Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit. (1) Notice to holder of permit. Whenever the Police Chief has probable cause to believe that grounds for the suspension or revocation of a Massage Establishment Permit, Managing Employee Permit or Massage Practitioner Permit exist, he/she shall give the holder of the permit written notice of the date, time and place of a hearing to be held before the Police Chief on whether the permit should be suspended or revoked. The notice shall state the alleged grounds for the proposed revocation or suspension of the permit, and the notice shall be served on the holder of the permit personally at the most recent home or business address on file with the police department or by deposit of the notice in the United States mail by certified mail. Said notice shall also state that if no written request for a hearing is timely received, the applicant shall be deemed to waive its rights to a hearing. (2) Hearing before Police Chief. The hearing on the revocation or suspension of the permit shall be held before the Police Chief or his/her designee no less than ten (10) days after the personal service of the notice to the holder of the permit at the most recent home or IJH\598734.2 01-081803-04706002 -17- ORDINANCE NO. 2003-16 business address on file with the police department, or no less than ten (10) days after deposit of the notice, addressed to the holder of the permit or certificate, in the United States mail by certified mail. At the hearing, the holder of the permit and a representative of the City shall have the right to appear and to be represented by counsel, and to present evidence and arguments which are relevant to a determination of whether grounds for suspension or revocation of the permit or certificate exist. (3) Decision of Police Chief. Within ten (10) days after the hearing, the Police Chief shall issue a written decision which states whether the permit is suspended or revoked, the length of any suspension, and the factual basis for the decision, and that the holder of the permit may appeal any suspension or revocation to the City Administrator through the procedures set forth in paragraph 4, below. The decision of the Police Chief shall be served on the holder of the permit by personal service at the most recent home or business address on file with the police department or deposit of the notice, addressed to the holder of the permit, in the United States mail by certified mail. Said notice shall also state that if no written request for an appeal hearing is timely received, the applicant shall be deemed to waive its rights to an appeal hearing. (4) Request for appeal hearing before City Administrator. The holder of the permit may appeal the decision of the Police Chief by filing a written request for an appeal hearing, which states the specific grounds on which the decision of the Police Chief is contested, with the City Administrator's office within ten (10) days of the personal service to the holder of the permit of the police chiefs decision at the most recent home or business address on file with the police department, or within ten (10) days of service of the decision by deposit of the notice, addressed to the holder of the permit, in the United States mail by certified mail. (5) Appeal hearing before City Administrator. Upon receipt of a timely request for an appeal hearing, the City Administrator's office shall notify the permit holder in writing of the date, time and place of the hearing before the City Administrator, which shall not be less than ten (10) days after service of such written notice on the permit holder by personal service at the most recent home or business address on file with the police department, or ten (10) days after service of the notice by deposit of the notice, addressed to the holder of the permit or certificate, in the United States mail by certified mail. At the hearing, both the holder of the permit and the Police Chief shall have the right to appear and be represented by counsel and to present evidence and arguments which are relevant to the grounds for the appeal, as stated in the request for an appeal hearing. Within ten (10) days of the hearing, the City Administrator shall issue a written decision that states whether the decision of the Police Chief is upheld, modified or reversed, and the length of any suspension. The decision shall be served on the holder of the permit by in-person delivery or by certified mail. The decision of the City Administrator shall be final. (6) Effective date of revocation or suspension. Any suspension or revocation of a permit shall become effective immediately upon the personal service of the written decision of the Police Chief, or, in the event of an appeal, the City Administrator, to the holder of the IJH\598734.2 01-081803-04706002 -18- ORDINANCE NO. 2003-16 permit at the most recent home or business address on file with the city, or within five (5) days of the deposit of such decision addressed to the holder of the permit into the United States mail by certified mail. (7) Surrender of suspended or revoked Massage Establishment Permit, Managing Employee Permit, or Massage Practitioner Permit to Police Chief. Upon a written decision by the Police Chief, or in the event of an appeal, by the City Administrator, which suspends or revokes a Massage Establishment Permit, Managing Employee Permit, or Massage Practitioner Permit, the permit shall immediately be surrendered to the Police Chief. In the case of a suspension, the Police Chief shall return the permit after the period of suspension has ended. Sec. 13.62 Criminal penalties. Except as specified in Section 13.57, a violation of any provision of this Article is a misdemeanor and may be prosecuted by the City in the name of the people of the State of California. The maximum fine or penalty for any violation of this article shall be one thousand dollars ($1000), or a term of imprisonment in the county j ail for a period not exceeding six (6) months, or both such fine and imprisonment. Except as otherwise provided, every such person shall be guilty of a separate offense for each and every day during any portion of which any violation is committed, continued or permitted by such person, and shall be punishable accordingly. Sec. 13.63 Massage Establishment operated in violation of this Article deemed a public nuisance. Any Massage Establishment which is opened, operated or maintained contrary to the provisions of this Article shall be deemed a public nuisance. In addition to, or in lieu of any other available legal remedies, the city attorney or district attorney of Santa Clara County may commence a civil legal action or actions in a court of competent jurisdiction to abate such nuisance and to enjoin the continued operation and maintenance ofthe Massage Establishment in a manner prohibited by this Article. Sec. 13.64 Application of this Article to preexisting Massage Establishments and persons holding valid Massage Practitioner business licenses before effective date of this Chapter / Two-year time period for holders of preexisting business licenses to meet new educational requirements. (a) Except as otherwise provided herein, the provisions of this chapter shall become applicable to Massage Establishments which lawfully existed in the City prior to the effective date of this chapter, and to persons who held valid Massage Practitioner business license issued by the City prior to the effective date of this chapter, upon the expiration of such preexisting Massage Establishment business license and/or Massage Practitioner business license on July 31, 2004, and/or pursuant to Section 13.60. In order to renew such preexisting Massage Establishment business license, the holder of the business license must file an application for a new permit pursuant to Section 13.52, pay all applicable fees and must demonstrate, to the satisfaction of the Police Chief, that he/she meets all requirements of this chapter, except that holders of preexisting Massage Establishment business license shall have a period of two (2) IJH\598734.2 01-081803-04706002 -19- ORDINANCE NO. 2003-16 years from the effective date of this chapter to meet the new educational requirements set forth in Sections 13.51 and 13.52, respectively. (b) Home Massage Establishments which lawfully existed in the City prior to the effective date of this chapter shall be permitted to maintain their home Massage Establishment as a home occupation provided that they continue to maintain their existing business license continuously in effect and the holder of the business license must file an application for a new permit pursuant to Section 13.52, pay all applicable fees and must demonstrate, to the satisfaction of the police chief, that he/she meets all requirements of this chapter. SECTION IV If any section, subsection, subdivision, sentence, clause or phrase of this Ordinance is for any reason held to be unconstitutional or otherwise void or invalid by any court of competent jurisdiction, the validity of the remaining portion of this Ordinance shall not be affected thereby. SECTION V This Ordinance shall be in full force and effect thirty (30) days after the date of its passage and adoption. PASSED AND ADOPTED BY THE COUNCIL OF THE CITY OF GILROY this 6th day of October, 2003, by the following vote: NOES: COUNCILMEMBERS: ARELLANO, DILLON, GARTMAN, MORALES, PINHEIRO, VELASCO and SPRINGER NONE AYES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: NONE ATTEST: . ,-- ~~c2u~,~. Rhohda Pellin, City Clerk IJH\598734.2 01-081803-04706002 -20- ORDINANCE NO. 2003-16 I, RHONDA PELLIN, City Clerk ofthe City of Gilroy, do hereby certify that the attached Ordinance No. 2003 -16 is an original ordinance, or a true and correct copy of a city ordinance, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council held on the 6th day of October, 2003, at which meeting a quorum was present, and has been published or posted pursuant to law. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of the City of Gilroy this 9th day of October, 2003. 1.d~ tiJ~<.-,,-' City C erk of the City of Gilroy (Seal)