HomeMy WebLinkAboutItem 2b - Ordinance 2260 Massage Therapy LicensesORDINANCE NO. 2260
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ARCADIA, CALIFORNIA, AMENDING ARTICLE VI, CHAPTER 4,
DVISION 8 OF THE ARCADIA MUNICIPAL CODE CONCERNING
THE LICENSING OF MASSAGE THERAPIST BUSINESSES
WHEREAS, the City of Arcadia ( "City") is authorized by the California Constitution
and Government Code Section 51030 et. gm., 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 massage establishments;
and
WHEREAS, massage establishments are businesses which involve significant intimate
contact between persons which creates opportunities for acts of prostitution and other
unlawful sexual activity to occur as well as posing health and safety risks if massage therapy
is not performed correctly; and
WHEREAS,. Article VI, Chapter 4, Division 8 of the Arcadia Municipal Code
currently regulates massage establishments and massage therapists to reduce the risk of illicit
activity and to protect the health and safety of the City's citizens; and
WHEREAS, Business and Professions Code Section 4600.5 creates a state - organized
non -profit massage therapy organization that may begin issuing massage certifications to
massage technicians on September 1, 2009; and
WHEREAS, Business and Professions Code Section 4612 limits the ability of cities to
regulate the operations of massage establishments employing only massage therapists who
have received certification from the massage therapy organization, including preempting most
local licensure requirements and some land use regulations; and
WHEREAS, Business and Professions Code Section 4612 also prevents any city from
requiring the holder of a massage certificate received from the massage therapy organization
to obtain an additional license, permit, or other authorization to practice massage; and
WHEREAS, Business and Professions Code Section 4612 does not prevent cities from
adopting or enforcing any local ordinance governing zoning, business licensing, and
reasonable health and safety requirements for massage establishments and businesses; and
WHEREAS, the City has the duty to protect its citizens by ensuring that all massage
therapy businesses operating within City limits do so in a safe, clean, and healthful manner;
and
WHEREAS, the City wishes to amend the Arcadia Municipal Code to ensure the City
regulates massage therapists and massage businesses in compliance with the provisions of
Business and Professions Code Section 4600 et. seg.; and
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WHEREAS, the City believes that it will benefit the public and promote the City's
significant governmental interest in protecting its citizens from unscrupulous and unsafe business
practices by creating enhanced business licensing requirements for owners and operators of
massage therapy businesses.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
SECTION 1. Section 6418 of Article VI, Chapter 4, Division 8 of the Arcadia Municipal
Code is hereby amended to read as follows:
6418. FINDINGS AND PURPOSE.
The City of Arcadia is authorized, by virtue of the State Constitution and Section 51031 of the
Government Code, to regulate massage therapists by conditioning the issuance of a license to
engage in the business of massage on reasonable standards relative to their skill and experience,
and to regulate owners and operators of massage therapy businesses to ensure the safety of
clients receiving massage therapy.
While the City Council recognizes that section 4612 of the Business and Professions Code gives
those individuals who are certified pursuant to chapter 10.5 of the Business and Professions
Code the right to practice massage, the City Council also finds that section 4612 of the Business
and Professions Code gives the City the right to adopt reasonable business licensing and health
and safety requirements for massage establishments and businesses.
The City Council finds and determines that licensing standards pertaining to massage therapy
business activities are necessary to protect the public health and safety and the personal safety of
massage therapists.
The City Council further finds that the public health and safety are best served by the adoption of
an ordinance providing for regulation of massage therapy business activities in a manner that is
consistent throughout the City of Arcadia.
The establishment of reasonable standards for issuance of a license and restrictions on massage
therapy business activities would serve to reduce the risk of illegal activities.
There is a significant risk of injury to massage clients by improperly trained and/or uneducated
massage therapists and this Division provides reasonable safeguards against injury and economic
loss.
SECTION 2. Section 6418.1 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
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6418.1. DEFINITIONS.
"Acupressure" shall mean the stimulation or sedation of specific meridian points and trigger
points near the surface of the body by the use of pressure applied in order to prevent or modify
perception of pain or to normalize physiological functions, including pain control, in the
treatment of certain diseases or dysfunctions of the body.
"Acupuncture" means the stimulation of a certain point or points on or near the surface of the
body by the insertion of needles to prevent or modify the perception of pain or to normalize
physiological functions, including pain control, for the treatment of certain diseases or
dysfunctions of the body and includes the techniques of electroacupuncture, cupping, and
moxibustion.
"Acupuncturist" means an individual to whom a license has been issued to practice acupuncture
pursuant to chapter 12 of the Business and Professions Code, which is in effect and is not
suspended or revoked.
"Applicant" means the individual seeking a business license pursuant to this Division.
"Certified copy" shall mean a copy of a document that is certified by the issuer as being a true
and accurate copy of the original document or a similar document bearing an original signature
of the issuer.
"Chief of Police" means the Chief of Police of the City of Arcadia, or his or her designated
representative.
"City of Arcadia Massage Verification Card" shall mean the card issued by the City of Arcadia
after receiving a certified copy of a massage therapist's massage certificate which verifies the
massage therapist's ability to practice massage in the City of Arcadia.
"City regulatory officials" shall mean the City's Licensing Authority, Building and Planning
Services, Code Services Officers, Fire Department and the Police Department.
"Disqualifying conduct" means any of the following:
(A) Pandering;
(B) Keeping or residing in a house of ill -fame;
(C) Keeping a house for the purpose of assignation or prostitution, or other disorderly house;
(D) Prevailing upon a person to visit a place of illegal gambling or prostitution;
(E) Lewd conduct;
(F) Prostitution activities;
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(G) Any offense committed in any other State which, if committed or attempted in this State,
would have been punishable as a felony;
(H) Any felony offense involving the sale of any controlled substance;
(I) Any offense committed in any other State which, if committed or attempted in this State,
would have been punishable as a felony offense involving the sale of any controlled substance;
(J) Any misdemeanor or felony offense which relates directly to the practice of massage
therapy, whether as a massage therapy business owner or operator, or as a massage therapist; or
(K) Any felony the commission of which occurred on the business premises where massage
therapy services are performed.
"Employ" shall include, without limitation, contracting with independent contractors- as well as
hiring or employing persons.
"Employee" shall include, without limitation, independent contractors and persons hired or
employed by an operator or owner of a massage therapy business.
"Health Department" means the County of Los Angeles Department of Health Services.
"Licensing Authority" shall mean the Business License Officer or the designated official
responsible for issuing, revoking and otherwise administering the provisions of this Division.
"Massage" or "massage therapy" shall mean any method of pressure on, or friction against, or
stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the
human body with the hands or with the aid of any mechanical or electrical apparatus or
appliance, with or without supplementary aids such as creams, ointments, or other similar
preparations commonly used in the practice of massage, under such circumstances that it is
reasonably expected that the person to whom the treatment is provided or some third person on
his or her behalf will pay money or give any other consideration or any gratuity therefor.
"Massage Business License" or "Business License" or "License" shall mean the City of Arcadia
business license required to be applied for and obtained by anyone wishing to own or operate a
massage therapy business.
"Massage Certificate" shall mean a certificate issued pursuant to section 4601(a) of the Business
and Professions Code (Chapter 10.5 commencing with Section 4600).
"Massage therapist" shall mean any person who, for any consideration whatsoever, performs or
offers to perform a massage in a massage therapy business.
"Massage therapy business" shall mean both massage establishments or businesses that are sole
proprietorships, where the sole proprietor has either a Massage Certificate or a Massage
Therapist Identification Card and massage establishments or businesses that employ or use only
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persons that have either a Massage Certificate or a Massage therapist identification card to
provide massage services.
"Massage Therapist Identification Card" shall mean a card issued by the City of Arcadia which
allows the holder of the card to practice massage in the City.
"Minor" means any individual under the age of eighteen (18) years.
"Nudity" or "semi- nudity" shall mean any of the following:
(A) The appearance or display of an anus, male or female genital, pubic region or a
female breast; or
(B) A state of undress which less than completely covers an anus, male or female genital,
pubic region or a female breast.
"Operator" or "owner" means the individual(s) who are responsible for the management and/or
supervision of a massage therapy business. Whenever the term owner or operator is used in this
Division, it shall be deemed to include, without limitation, the manager of any massage therapy
business.
"Patron" shall mean any person who receives a massage in exchange for any form of
consideration including, but not limited to, the payment of money.
"Personal Service Business" shall mean a business providing non - medical personal, health,
beauty, or grooming services to its individual customers as a primary use including, but not
limited to, day spas, hair salons, nail salons, beauty parlors and health spas.
"Recognized school of massage" shall 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 instruction complies with California Education Code Sections 94700 through
94999 and any and all successor statutes, and all regulations promulgated pursuant thereto, and
which requires a resident course of study before the student shall be fumished with a diploma or
a certificate of graduation from such school or institution of learning following the successful
completion of such course of study or learning; and shall further mean any similar school or
institution of learning in another State of the United States which has standards and requirements
equivalent to those of California Education Code Sections 94700 through 94999 and regulations
promulgated pursuant thereto.
"Specified anatomical area" shall mean human genitals, pubic region or a female breast.
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SECTION 3. Section 6418.2 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.2. ACUPRESSURE.
This Division shall also apply to the administration of acupressure, except as administered by
licensed acupuncturists.
SECTION 4. Section 6418.3 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.3. PERMISSIBLE MASSAGE THERAPY BUSINESS ACTIVITIES.
It shall be unlawful for any person to own, conduct, permit, or manage a business establishment
having a fixed place of business for the sole and primary purpose of deriving income'or
compensation from massage therapy business activities. Massage therapy business activities
shall be purely incidental and secondary to any established business.
Massage therapists may operate at (a) an established medical office, including the office of a
chiropractor; and (b) a personal service business.
All such established businesses shall comply with all building and zoning regulations, the
regulations of this Division, and all other applicable requirements of law.
No person shall engage in, conduct or carry on, or permit to be engaged in, conducted or carried
on, any massage therapy business, unless the massage operations are conducted within a
structure located in a zone where such use is permitted. All such established businesses shall
comply with all building and zoning regulations, the regulations of this Division including
licensing requirements, and all other applicable requirements of law.
SECTION 5. Section 6418.4 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.4. CERTIFICATION OR IDENTIFICATION REQUIRED TO CONDUCT
MASSAGE THERAPY.
It shall be unlawful for any person to engage in massage therapy without having either a
valid Massage Therapist Identification Card or a valid Massage Certificate. To ensure
compliance with this Code section, upon receipt of either a Massage Therapist Identification
Card or a Massage Certificate, all massage therapists must file a certified copy of either their
Massage Therapist Identification Card or their Massage Certificate with the City of Arcadia
Development Services Department — Business License Division. After successfully filing either
their Massage Therapist Identification Card or Massage Certificate, all massage therapists will be
issued a City of Arcadia Verification Card.
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SECTION 6. Section 6418.5 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.5. BUSINESS LICENSE REQUIRED.
Any person owning or operating a business that provides massage therapy shall apply for and
obtain from the City of Arcadia a Massage Business License. Obtaining the required business
license includes obtaining approval from the Department of Development Services, Planning
Services, of the proposed business location. The applicant shall file a written application on the
required form provided by the Development Services Department.
The following information, documents and other requirements shall be included with the
submission of such application:
(A) A statement of the exact location of the business, including the full street address and all
telephone numbers associated with said location. If the business will be operated by an
individual who is not the owner, the owner shall provide a letter of verification, signed and
dated, indicating the intent to employ the operator.
(B) Full name, and all aliases used by the applicant, along with complete residence address and
telephone number,
(C) Previous residential addresses for five (5) years immediately preceding the current address
of the applicant,
(D) Driver's license number or identification number,
(E) Social security number,
(F) 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,
(G) 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 Division; (b) understands its contents; and (c) understands
the duties of owners /operators of businesses that provide massage therapy as provided in this
Division,
(H) Applicant's valid Massage Certificate or valid Massage Therapist Identification Card, if
applicant plans to practice massage therapy.
Applicants who do not show proof of either a valid Massage Certificate or a current Massage
Therapist Identification Card shall also provide the following information:
(A) Whether or not the applicant is required to register as a sex offender pursuant to Penal Code
Section 290,
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(B) All criminal convictions, including pleas of nolo contendere (no contest), within the last ten
(10) years, including, without limitation, those dismissed or expunged pursuant to Penal Code
Section 1203.4, but excluding minor traffic violations; and the date and place of each such
conviction,
(C) Two (2) front -face portrait photographs at least two inches (2 ") by two inches (2 ") in size
taken within thirty (30) days immediately preceding the date of application,
(D) A complete set of fingerprints taken on the date of application by the Arcadia Police
Department,
(E) Such other information and identification as the Chief of Police may require in order to
discover the truth of the matters herein specified and as required to be set forth in the application.
All applicants shall pay a nonrefundable business licensing fee sufficient to cover the costs of
business licensing activities, in the amount established by resolution of the City Council.
SECTION 7. Section 6418.6 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.6. DENIAL OF MASSAGE THERAPY BUSINESS LICENSE.
Within ten (10) days of the date of the notice of denial, the applicant may file an appeal to the
Business Permit and License Review Board. Each appeal of a denial of a license shall be
accompanied by the payment of $540 to cover the cost of the hearing and appeal.
Upon the filing of an appeal, and within thirty (30) days of the date of such appeal, or as soon
thereafter as possible, a hearing shall be conducted by the Board. Any Board member who has
any financial interest in the outcome of the hearing or is unable to make a fair, impartial and
unbiased determination shall not participate in either the hearing or in any determination or
recommendation after the hearing. Prior to the hearing, City staff may, in their sole and absolute
discretion, request the presence of an attorney from the City Attorney's office at the hearing, if
one is not already scheduled to appear, or his/her designee, in order to present evidence on behalf
of the City. During the hearing, all parties involved shall have the right to offer testimonial,
documentary, and tangible evidence bearing upon the issues and may be represented by counsel.
The Board shall not be bound by the formal rules of evidence and may require the presentation
of additional evidence from any party involved. Any hearing under this Section may be
continued for a reasonable time for the convenience of a party or witness at the request of the
permit applicant or permit holder, or any other party. Extensions of time or continuances sought
by a permit applicant or permit holder shall not be considered delay on the part of the City and
shall not be deemed to constitute failure by the City to provide for prompt decisions on permit
denials, suspensions, or revocations.
At the conclusion of the hearing, but no later than ten (10) days thereafter, the Board shall, by a
majority vote of the members present at the hearing, order that the license be denied or approved,
or approved contingent upon the applicant performing some action such as, but not limited to,
paying a fine or penalty.
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Within ten (10) days of receipt of any final decision by the Board, either the holder of the
revoked license or applicant for the denied license, any member of the City Council, any affected
City Department Head or any other business or resident of the City may appeal the decision by
filing an appeal with the Board. Immediately upon receipt of such appeal, the Board shall
transmit to the City Council the final decision and all findings for placement on the agenda at the
first regularly scheduled Council meeting subsequent to the filing of the appeal, or as soon
thereafter as possible. The City Council shall consider the findings and recommendations of the
Board and may adopt them in total, hold a de novo hearing, or the City Council may amend,
modify or reject the recommended decision of the Board. In addition, the City Council may send
the findings and recommendations back to the Board with instructions to rehear any relevant
matter not previously heard and then resubmit additional amended or modified findings to the
City Council. The City Council may deny or approve the license, or impose such other or further
reasonable terms, conditions or restrictions on the terms, conditions or restrictions theretofore
placed on said license as the City Council finds reasonable or necessary to ensure that the
business enterprise, occupation or activity will not be contrary to or inimical to or jeopardize the
preservation of the public peace, safety or welfare of the City or its inhabitants, or be detrimental
to other properties or businesses in its vicinity. The decision of the City Council shall be final.
SECTION 8. Section 6418.7 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.7 NUMBER OF LICENSES PERMITTED.
Each medical office or physical therapy office shall be limited to two (2) massage therapists per
office or address, not per practitioner. Acupuncturists may not employ massage therapists or
have massage therapists operate in their offices.
SECTION 9. Section 6418.8 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.8. HOURS OF OPERATION.
No massage therapist shall administer a massage in any established business between the hours
of 9:00 p.m. and 7:00 a.m. The hours of operation must be displayed in a conspicuous public
place within the established business.
SECTION 10. Section 6418.9 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.9. BUSINESS OWNER/OPERATOR RESPONSIBILITY.
All massage therapy business owners and/or operators shall be responsible for the conduct of all
employees and independent contractors. Any act or omission of any employee or independent
contractor constituting a violation of the provisions of this Division shall be deemed the act or
omission of the business owner for purposes of determining whether the owner's license shall be
revoked, suspended, denied or renewed.
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No business owner and/or operator shall employ any person, or allow any person, to conduct a
massage or act as an independent contractor conducting massage who does not have either a
valid Massage Therapist Identification Card or a Massage Certificate and City of Arcadia
Massage Verification Card. In order to ensure compliance with these Code provisions, no
massage therapy business owners shall employ any person who has not shown them either their
valid Massage Therapist Identification Card or valid Massage Certificate and City of Arcadia
Massage Verification Card.
SECTION 11. Section 6418.10 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.10. MASSAGE THERAPIST IDENTIFICATION CARD REQUIRED IF NO
MASSAGE CERTIFICATE.
Any person performing massage or massage therapy without a Massage Certificate shall apply
for and obtain from the City of Arcadia a Massage Therapist Identification Card. The applicant
shall file a written application on the required form provided by the Arcadia Police Department.
The following information, documents and other requirements shall be included with the
submission of such application:
(A) A statement of the exact business location at or from which the applicant will be working as
a massage therapist, including the full street address and all telephone numbers associated with
said location, and a letter of verification from the owner of the business, signed and dated,
indicating the intent to employ the applicant, and the following personal information concerning
the applicant:
(1) Full name, and all aliases used by the applicant, along with complete residence
address and telephone number,
(2) Previous residential addresses for five (5) years immediately preceding the current
address of the applicant,
(3) Written proof that the applicant is at least eighteen (18) years of age,
(4) Height, weight, color of hair and eyes, and gender,
(5) Driver's license number or identification number,
(6) Social security number,
(7) The occupation and employment history of the applicant, including, without
limitation, names, addresses and telephone numbers of all employers, for the five (5) years
immediately preceding the date of application,
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(8) The complete permit history of the applicant concerning massage or massage
therapy services provided by the applicant, including, without limitation, whether the applicant
has ever had any license or permit, issued by any agency, board, City, or other jurisdiction,
denied, revoked or suspended, and if so, the date, location and reason for the denial, revocation
or suspension,
(9) Whether or not the applicant is required to register as a sex offender pursuant to
Penal Code Section 290,
(10) All criminal convictions, including pleas of nolo contendere (no contest), within the
last ten (10) years, including, without limitation, those dismissed or expunged pursuant to Penal
Code Section 1203.4, but excluding minor traffic violations; and the date and place of each such
conviction,
(11) 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,
(12) 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 Division; (b) understands its contents; and
(c) understands the duties of a massage therapist as provided in this Division;
(B) Two (2) front -face portrait photographs at least two inches (2 ") by two inches (2 ") in size
taken within thirty (30) days immediately preceding the date of application;
(C) A complete set of fingerprints taken on the date of application by the Arcadia Police
Department;
(D) A certified copy of the applicant's diploma or certificate of graduation and certified
transcript of graduation for completion of five hundred (500) hours of instruction from a
recognized school of massage;
(E) Such other information and identification as the Chief of Police may require in order to
discover the truth of the matters herein specified and as required to be set forth in the application;
(F) The applicant shall pay a nonrefundable application fee at the time of filing an application,
in the amount established by resolution of the City Council.
SECTION 12. Section 6418.11 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.11. PROCESSING THE APPLICATION.
All Massage Therapist Identification Card applications, together with the application fee, shall be
submitted to the Arcadia Police Department.
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Following the determination by the Chief of Police that the application is complete, the Chief of
Police shall conduct an investigation, in such manner as deemed appropriate, in order to ascertain
whether such application should be approved as requested.
Once it is deemed complete, the Chief of Police shall approve, conditionally approve or
disapprove the application, within fifteen (15) business days, unless delayed by fingerprint
checking or other facts which require additional investigation to determine the qualifications of
the applicant. If the investigation requires processing beyond the fifteen (15) business day limit,
the applicant shall be notified of the delay by mail prior to the expiration of the fifteen (15)
business days.
SECTION 13. Section 6418.12 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.12. ISSUANCE OF IDENTIFICATION CARD.
The Chief of Police shall issue a Massage Therapist Identification Card if there are no grounds to
disapprove the application as set forth in Section 6418.13 of this Division.
SECTION 14. Section 6418.13 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.13. DISAPPROVAL OF MASSAGE HL+:RAPIST IDENTIFICATION
CARD.
If the Massage Therapist Identification Card application is denied, the Chief of Police shall
provide written notice of the disapproval to the applicant. In cases where the Chief of Police does
not respond to the applicant within fifteen (15) business days after the application is deemed
complete, the application shall automatically be deemed disapproved on the sixteenth (16th)
business day after the application was submitted and deemed complete.
If the application is disapproved, the applicant shall not be eligible to apply for any Massage
Therapist Identification Card or Massage Business License within the City of Arcadia for a
minimum of one (1) year from the date the application was disapproved.
The application shall be disapproved if the Chief of Police finds any one (1) or more of the
following:
(A) The applicant is not eighteen (18) years of age or older;
(B) The application is incomplete or any required information or document has not been
provided with the application;
(C) The applicant has made one (1) or more false, misleading or fraudulent statements or
omissions of fact on the application or during the application process;
(D) The applicant has, within ten (10) years preceding the date of the application, been
convicted of disqualifying conduct, or of a lesser included offense;
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(E) The applicant is required to register as a sex offender;
(F) The applicant has not met the requirements of this Division;
(G) The granting of the identification card or license would pose a threat to public health, safety
or welfare;
(H) The applicant has been convicted of an act involving 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 therapist;
(I) The applicant has, within five (5) years preceding the date of application, had a massage
therapist permit or similar permit or license denied, suspended or revoked for cause by a
Licensing Authority, City, County or State.
SECTION 15. Section 6418.14 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.14. RENEWAL OF MASSAGE THERAPIST IDENTIFICATION CARD.
A massage therapist shall annually apply for renewal of the Massage Therapist Identification
Card on forms provided by the Arcadia Police Department. The massage therapist applicant shall
pay a nonrefundable application renewal fee at the time of filing a renewal application in the
amount established by resolution of the City Council.
SECTION 16. Section 6418.15 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.15. RENEWAL OF MASSAGE THERAPY BUSINESS LICENSE.
Owners and/or operators of businesses that provide massage therapy shall annually apply for
renewal of their Massage Business License. The owner and/or operator applicant shall pay a
nonrefundable application renewal fee at the time of filing a renewal application in the amount
established by resolution of the City Council. The owner of a business that provides massage
therapy shall maintain a current business license. Any owner and/or operator who currently
possesses a business license allowing them to operate a massage therapy business must, upon
time for the renewal of their license, apply for a Massage Business License, supplying the
information as required in Section 6418.5 of this Division.
SECTION 17. Section 6418.16 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
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6418.16. TRANSFER OF LICENSE.
No Massage Therapist Identification Card or Massage Therapy Business License shall be sold or
transferred to any other person or persons.
SECTION 18. Section 6418.17 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.17. CHANGE OF INFORMATION.
If, during the term of a Massage Therapist Identification Card or Massage Therapy Business
License, a massage therapist or an owner and/or operator has any change of information
submitted on the original application or license renewal application, the massage therapist shall
notify the Arcadia Police Department and the Business License Officer of such change in writing
within ten (10) business days thereafter.
SECTION 19. Section 6418.18 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.18. CESSATION OF MASSAGE THERAPY SERVICES.
The massage therapist is required to notify the Business License Office by written notice, filed
within fifteen (15) business days after the last date of the performance or offering of massage
therapy services, if he or she no longer performs or offers massage therapy services in the City of
Arcadia.
SECTION 20. Section 6418.19 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.19. PROHIBITED ACTIVITIES.
(A) It is unlawful for any massage therapist, employee, patron, or any other person present
where massage therapy services are being offered or performed, to expose or touch the genitals
or anal area, or the breast of any female, whether his or her own, or those of another person.
(B) It is unlawful for any massage therapist, employee, patron, or any other person present
where massage therapy services are being offered or performed, to engage in any sexual
activities.
(C) It is unlawful for any massage therapist, employee, patron, or any other person present
where massage therapy services are being offered or performed, to be in a state of nudity or
semi - nudity.
(D) No massage therapist shall provide or offer to provide any massage therapy services to a
minor unless the minor's parent or legal guardian provides written permission.
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(E) No person shall enter, be in, or remain in, any area where massage therapy services are
offered or performed while in the possession of, consuming, using or under the influence of, any
alcoholic beverage or controlled substance. Service of alcoholic beverages shall not be permitted
at any established business where massage therapy services are being performed.
(F) Patrons shall not be prohibited from the use of, or possession of, cellular phones, pagers or
any communication devices while massage therapy services are being offered or performed.
(G) It is unlawful for any massage therapist, employee, patron, or any other person present
where massage therapy services are being offered or performed, to wear or have in their
possession such items as nightgowns, negligees, bathrobes, sex paraphernalia or condoms. Every
business owner and/or operator shall assure that such items are not being kept, possessed, stored
or used on the business premises.
(H) No electrical, mechanical or artificial device shall be used for audio and/or video recording
or for monitoring the performance of a massage, or the conversation or other sounds in any
massage room.
SECTION 21. Section 6418.20 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.20. OPERATIONS.
(A) Identification Cards. Each massage therapist shall at all times while on the massage
therapy business premises have in his or her possession either the Massage Therapist
Identification Card required by this Division or their Massage Certificate, a valid photo
identification, and their City of Arcadia Massage Verification Card. Such card and identification
shall be provided to City regulatory officials upon demand. Each owner and/or operator shall at
all times while on the massage therapy business premises have in his or her possession a copy of
the Business License required by this Division and a valid photo identification. Such card and
identification shall be provided to City regulatory officials upon demand.
(B) Display of License. Each owner or operator of a massage therapy business shall
display the Business License Certificate issued pursuant to this Division in an open and
conspicuous place on the business premises where massage therapy services are performed.
(C) Clothing. Each massage therapist and all other employees shall be fully clothed at
all times. Clothing shall be fully opaque, nontransparent uniforms, similar to uniforms worn in
medical offices, and shall provide complete covering of the genitals, pubic area, buttocks, anal
area and chest area.
(D) Sterilizing Equipment. Each massage therapist shall provide and maintain at the
business location where the massage is performed adequate equipment for disinfecting and
sterilizing instruments used in massage.
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(E) Covering. Each massage therapist shall provide to all patrons clean, sanitary and
opaque coverings capable of covering the patron's specified anatomical areas, including the
genital, anus and chest area. Reuse is prohibited unless the covering is adequately cleaned.
(F) Linen. Towels and linen shall be changed and laundered promptly after each use.
Separate cabinets or containers shall be provided for the storage of clean and soiled towels and
linen.
(G) Advertising. No massage therapist operating under this Division shall place, publish
or distribute, or cause to be placed, published or distributed, any advertising matter that depicts
nudity or semi - nudity or employs language in the text of such advertising that would reasonably
suggest to a prospective patron that any other services are available other than those services
authorized by this Division.
(H) Discrimination. No massage therapist 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.
(I) Inspections and Searches. The business owner /operator, and massage therapist, as a
condition to the issuance of either each Business License or each Massage Therapist
Identification Card, shall be deemed to consent to the reasonable inspection of the business
premises during regular business hours by the City Development Services Department, Fire
Department, Police Department and the Los Angeles County Health Department for the purpose
of determining that the provisions of this Division or other applicable laws or regulations are
met.
(J) Lighting. The lighting in each massage room shall be at least one (1) sixty -watt white
light bulb and shall be activated at all times while a patron is in such room or enclosure. No
strobe flashing lights may be used. No colored lights shall be used nor shall any coverings be
used which change the color of the primary light source.
(K) Ventilation. Ventilation shall be provided in accordance with the applicable
provisions of the building and construction codes adopted by the City of Arcadia.
(L) Building Permits. All building, plumbing and electrical installations shall be
installed under permit and inspected by the Development Services Department. Such
installations shall be installed in accordance with the applicable provisions of the building and
construction codes adopted by the City of Arcadia.
(M) Separate Rooms. If male and female patrons are to be treated simultaneously, the
following shall be provided: separate treatment rooms, separate dressing rooms and separate
toilet facilities for each patron.
(N) Maintenance. All facilities where massage therapy services are offered 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 easily cleanable.
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(0) Massage Table. A massage table shall be provided in each massage room or
enclosure and the massage shall be performed on this massage table. The tables shall have a
minimum height of eighteen inches (18 "). Two- inch (2 ") thick foam pads with maximum width
of four feet (4') 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 business premises.
(P) Posting. Each service offered, the price thereof and the minimum length of time such
service is performed shall be posted in a conspicuous public location on the business premises.
No services shall be performed and no sums shall be charged for such services other than those
posted.
(Q) Notices. The following notice shall be conspicuously posted in a location within the
business where massage therapy services are performed that is easily visible to any person
entering the premises and in each massage room or enclosure:
THIS MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS DO NOT
PROVIDE COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION BY
THE ARCADIA POLICE DEPARTMENT WITHOUT PRIOR NOTICE.
(R) Roster of Employees. The business owner and/or operator shall maintain a register
of all massage therapists and employees, showing the name, nicknames and aliases used by the
massage therapist or 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 concerning each massage therapist and
employee shall be maintained at the premises of the business for a period of two (2) years
following termination. The business owner and/or operator shall make the register of massage
therapists and employees available immediately for inspection by the City regulatory officials
upon demand at all reasonable times.
(S) Records of Treatment. The business owner and/or operator shall keep a record of the
dates and hours of each treatment or service, the name and address of the patron, the name of the
massage therapist administering such service and a description of the treatment or service
rendered. A short medical history form shall be completed by the massage therapist to determine
if the patron has any communicable diseases, areas of pain, high blood pressure or any physical
condition that may be adversely affected by massage. These records shall be prepared prior to
administering any massage or treatment, and shall be retained for a period of twenty -four (24)
months after such treatment or service. These records shall be open to inspection upon demand
only by officials charged with enforcement of this Division and for no other purpose. The City
regulatory officials shall periodically inspect the records to ensure compliance with this Division.
Such records shall be kept at the business. The information furnished or secured as a result of
any such records shall be used only to ensure and enforce compliance with this Division, or any
other applicable State or Federal laws, and shall remain confidential. Any unauthorized
disclosure or use of such information by any officer or employee of the City shall constitute a
misdemeanor.
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SECTION 22. Section 6418.21 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.21. SUSPENSION AND REVOCATION OF MASSAGE THERAPIST
IDENTIFICATION CARD AND BUSINESS LICENSE.
The Licensing Authority shall suspend or revoke a Massage Therapist Identification Card and
Business License for any one (1) or more of the following:
(A) The administering of massage therapy services has been conducted in a manner that
does not comply with all applicable laws, including, but not limited to, this Division and the
City's building and zoning regulations;
(B) The license holder has violated a provision of this Division;
(C) The license holder is convicted of any disqualifying conduct or is required to
register as a sex offender;
(D) Information contained in the approved application is false, misleading or fraudulent;
(E) The license holder refuses to allow representatives of the City to inspect business
records or any premises utilized by the licensee for massage therapy services;
(F) The license holder has ceased to meet any of the requirements of this Division.
In the event of suspension or revocation of a license or card issued under this Division, the
Licensing Authority shall send to the license holder a revocation or suspension notice ten (10)
business days prior to the effective date of suspension or revocation. The license and/or card
shall be deemed revoked or suspended on the eleventh (11th) business day after the City mails or
otherwise delivers notice of suspension or revocation.
SECTION 23. Section 6418.22 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.22. RETURN OF LICENSE CERTIFICATE AND IDENTIFICATION
CARD.
If a Business License or Massage Therapist Identification Card is suspended or revoked, the
license certificate and identification card shall be returned to the Licensing Authority no later
than the end of the third (3rd) business day after the effective date of suspension or revocation.
SECTION 24. Section 6418.23 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
18
6418.23. APPEALS.
Within ten (10) days of the date of the notice of suspension or revocation, the applicant may file
an appeal to the Business Permit and License Review Board.
Upon the filing of an appeal, and within thirty (30) days of the date of such appeal, or as soon
thereafter as possible, a hearing shall be conducted by the Board. Any Board member who has
any financial interest in the outcome of the hearing or is unable to make a fair, impartial and
unbiased determination shall not participate in either the hearing or in any determination or
recommendation after the hearing. Prior to the hearing, City staff may, in their sole and absolute
discretion, request the presence of an attorney from the City Attorney's office at the hearing, if
one is not already scheduled to appear, or his/her designee, in order to present evidence on behalf
of the City. During the hearing, all parties involved shall have the right to offer testimonial,
documentary, and tangible evidence bearing upon the issues and may be represented by counsel.
The Board shall not be bound by the formal rules of evidence and may require the presentation
of additional evidence from any party involved. Any hearing under this Section may be
continued for a reasonable time for the convenience of a party or witness at the request of the
permit applicant or permit holder, or any other party. Extensions of time or continuances sought
by a permit applicant or permit holder shall not be considered a delay on the part of the City and
shall not be deemed to constitute failure by the City to provide for prompt decisions on permit
denials, suspensions, or revocations.
At the conclusion of the hearing, but no later than ten (10) days thereafter, the Board shall, by a
majority vote of the members present at the hearing, order that the license be denied or approved,
or approved contingent upon the applicant performing some remedial action such as, but not
limited to, paying a fine or penalty.
Within ten (10) days of receipt of any final decision by the Board, either the holder of the
revoked license or applicant for the denied license, any member of the City Council, any affected
City Department Head or any other business or resident of the City may appeal the decision by
filing an appeal with the Board. Immediately upon receipt of such appeal, the Board shall
transmit to the City Council the final decision and all findings for placement on the agenda at the
first regularly scheduled Council meeting subsequent to the filing of the appeal, or as soon
thereafter as possible. The City Council shall consider the findings and recommendations of the
Board and may adopt them in total, hold a de novo hearing, or the City Council may amend,
modify or reject the recommended decision of the Board. In addition, the City Council may send
the findings and recommendations back to the Board with instructions to rehear any relevant
matter not previously heard and then resubmit additional amended or modified findings to the
City Council. The City Council may deny or approve the license, or impose such other or further
reasonable terms, conditions or restrictions on the terms, conditions or restrictions theretofore
placed on said license as the City Council finds reasonable or necessary to ensure that the
business enterprise, occupation or activity will not be contrary to or inimical to or jeopardize the
preservation of the public peace, safety or welfare of the City or its inhabitants, or be detrimental
to other properties or businesses in its vicinity. The decision of the City Council shall be final.
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SECTION 25. Section 6418.24 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.24. REAPPLICATION AFTER REVOCATION.
An applicant for either a license or an identification card under this Division whose license or
identification card has been revoked may not reapply for such license or identification card for a
period of five (5) years from the date of revocation or other such time as the Board or City
Council deems prudent. However, the applicant may reapply prior to five (5) years if the
applicant provides clear and convincing evidence that the ground or grounds for revocation no
longer exist.
SECTION 26. Section 6418.25 of Article VI, Chapter 4, Division 8 of the Arcadia
Municipal Code is hereby amended to read as follows:
6418.25. EXEMPTIONS.
The provisions of this Division, with the exception of those provisions relating to massage
therapy business ownership, shall not apply to any of the following:
(A) State licensed physicians, surgeons, chiropractors, physical therapists, osteopaths, or
any registered or licensed vocational nurses working on the premises of, and under the direct
supervision of, a State licensed physician, surgeon, chiropractor or osteopath;
(B) Barbers, beauticians, manicurists and pedicurists who are duly licensed under the
laws of the State of California, except that this exemption shall apply solely to the massaging of
the scalp, face, neck, arms, hands, or feet of the client for cosmetic or beautifying purposes;
(C) Athletic trainers certified by the State of California performing training services for
professionals, amateur or school athletic events or practices; and
(D) Duly licensed businesses and government agencies only with respect to on -site
massage therapy services which are offered and provided at the expense of the business or
government agency, or at the expense of their employees, exclusively to their respective
employees, and not to the general public, solely as a benefit of employment. Massage therapy
provided hereunder must be provided by a person who (1) is a massage therapist, as defined in
this Division, who maintains either a valid Massage Certificate or valid Massage Therapist
Identification Card, or (2) qualifies for an exemption pursuant to Subsections (A), (B) or (C) of
this Section.
SECTION 27. Section 6211 of Article VI, Chapter 2, Division 1 of the Arcadia
Municipal Code is hereby amended to read as follows:
20
6211. LICENSE REQUIRED.
There are imposed upon the business• trades, professions, callings and occupations specified in
this Division license taxes in the amounts hereinafter prescribed. No person shall engage in
business or transact and carry on any business, trade, profession, calling or occupation in the
City, without first having procured a license from the City so to do and without fully complying
with any and all other provisions of this Code. This Section does not apply to adult businesses;
the regulation and permitting of adult businesses and the licensing of the trades, professions,
callings, and occupations thereof involved are separately enacted and provided for in Sections
9279 and 6700 et seq. of this Code. This Section also does not apply to massage therapy
businesses; the regulation and permitting of massage therapy businesses are separately enacted
and provided for in Sections 6418 et. seq. of this Code.
SECTION 28. The City Clerk shall certify to the adoption of this Ordinance and shall
cause a copy of the same to be published in the official newspaper of said City within fifteen (15)
days after its adoption.
ATTEST:
City Clerk
Passed, approved and adopted this
APPROVED AS TO FORM:
.c-qte.., P.
Stephen Deitsch
City Attorney
21
day of , 2009.
Mayor of the City of Arcadia
SUMMARY
STAFF REPORT
Development Services Department
DATE: July 21, 2009
TO: Mayor and City Council
FROM: Jason Kruckeberg, Development Services Director St-/<
Robert Sanderson, Chief of Police(
SUBJECT: ORDINANCE NO. 2260, AN ORDINANCE OF THE CITY
COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA,
AMENDING ARTICLE VI OF THE ARCADIA MUNICIPAL CODE
CONCERNING THE LICENSING OF MASSAGE THERAPIST
BUSINESSES
Recommendation: Introduce
The City Council passed a moratorium on massage uses on October 21, 2008 that
was subsequently expanded on November 18, 2008 for an additional 10 months and
15 days per statute. The moratorium has provided staff with time to review the City's
regulations and enforcement and to consider new State legislation governing
massage therapists (SB 731). The attached Ordinance represents proposed changes
to the City's massage therapist requirements to better regulate massage uses in the
City of Arcadia.
BACKGROUND
In response to a proliferation of establishments that provide massage services, City
staff brought forward information to the City Council last year to review massage
regulations and consider actions. The Development Services Department and Police
Department provided information on the massage licensing process and on the
increases in license requests for day spas, medical office uses such as chiropractors
and acupuncturists, and other "health centers ". In addition, a team of inspectors made
a series of inspections of over 40 such establishments in the City over a period of
months and found violations of the existing Ordinance at virtually every establishment.
These inspections are ongoing and while most of the establishments have addressed
July 21, 2009
Ordinance No. 2260
Page 2
the violations noted, there were several business license revocations and there
remain outstanding violations.
In response to this information, the City Council passed a moratorium on massage
uses on October 21, 2008 that was subsequently expanded on November 18, 2008
for an additional 10 months and 15 days per statute. The moratorium has provided
staff with time to review the City's regulations and enforcement and to consider new
State legislation governing massage therapists (SB 731). To obtain additional
direction, staff held a study session with the City Council on April 7, 2009 to discuss
issues germane to the new Ordinance and the lifting of the Moratorium.
The Moratorium is in place until October 21, 2009. Since the Moratorium has been in
place, the Business License Officer, on recommendation of the Police Department,
has issued revocations to eight (8) establishments. Of these, four establishments have
closed, two establishments appealed this decision and were denied by the City
Council following a hearing, one is still pending, and the final license was re- instated
by the Council following appeal and a hearing. The Business License Office and
Police Department are currently considering additional revocations.
DISCUSSION
The City's Moratorium on massage uses and massage therapist licenses has provided
staff with an opportunity to research this topic, track changes in State law, and
develop the attached Draft Ordinance. One of the key issues that emerged through
this review process was to adequately regulate massage uses while not creating the
unintended over - regulation of legitimate massage uses and other related businesses.
There are currently a number of legitimate massage uses in Arcadia that operate in
association with medical offices, and personal service businesses such as day spas or
salons. The existing regulations do not allow stand -alone massage parlors; massage
must be a secondary and incidental use. The new Ordinance retains this restriction. In
addition, the new Ordinance will continue to rely heavily on enforcement. The Police
Department and Development Services Department will continue to work toward
enforcement of those operations that are not adhering to the rules.
Each of the significant changes to the Ordinance is discussed below:
Compliance and coordination with new State process
Senate Bill 731 establishes a statewide process of regulating massage therapist
licenses. The State's appointed agency is to begin accepting applications in
September 2009. The new law establishes required hours of training from applicants
at certain approved training centers or schools as well as fingerprinting and renewals
every two years. The goal of this process as written is to standardize the licensing
July 21, 2009
Ordinance No. 2260
Page 3
procedure. To this end, the City Attorney's office has advised that the City not totally
defer to the State's process. There are doubts as to whether the State will be able to
have the new process up and running by September 1, 2009. It is also possible that
the new process will not provide the safeguards and oversight necessary to
adequately regulate licensing.
Ordinance No. 2260 provides language that will accept any State - approved massage
license as valid in the City of Arcadia. However, the Ordinance leaves in place its
existing standards to cover any therapist who does not present the City with a State -
approved license. Any therapist who does not have a State license would be required
to go through the Police Department's background test.
Prohibit massage therapy to occur in coordination with acupuncturists
At the request of the City Council, a provision has been added in the new Ordinance
that prohibits massage therapists at acupuncture offices.
Limiting the number of allowable licenses at a Doctor or Chiropractor's office
One of the perceived "loopholes" in the City's previous Ordinance is that an
acupuncturist or chiropractor can open an office and have a number of massage
therapists on staff. The Code currently limits this to "a maximum of two at any one
time on the premises ". However, this becomes an enforcement issue because an
unlimited number of licenses could be issued to a business like this. The proposed
Ordinance will simply allow a maximum of two business licenses for massage
therapists to be issued to any business office.
Additional considerations such as additional physical and written testing of applicants
and potential Conditional Use Permit requirements for massage uses were rejected
following the study session with the City Council. These provisions were viewed as
unfair to legitimate businesses in that they may be expensive and time consuming.
Additionally, these provisions were viewed as unnecessary if enforcement activity is
continued as it has been.
Ordinance No. 2260 reflects the combined efforts of the City Attorney's office, the
Police Department, and the Development Services Department to craft a fair and
comprehensive set of regulations for massage therapists and massage uses. The
Ordinance meets new State law and provides clear steps for licensing and
enforcement of these uses.
With regard to the California Environmental Quality Act, this Ordinance does not
qualify as a "project" under Section 15061(b)(3) of the California Code of Regulations
July 21, 2009
Ordinance No. 2260
Page 4
(CEQA Guidelines) and is therefore exempt in that there is no possibility of an
environmental impact.
FISCAL IMPACT
While there is the potential for a reduction in fees collected by the City as a result of
potential reliance on the State's licensing process, this is not viewed as a significant
fiscal impact.
RECOMMENDATION
It is recommended that the City Council move to introduce Ordinance No. 2260,
an Ordinance of the City Council of the City of Arcadia, California, Amending
Article VI of the Arcadia Municipal Code Concerning the Licensing of Massage
Therapist Businesses.
Approved:
Exhibits:
Attachment A:
Attachment B:
Donald Penman, City Manager
Ordinance No. 2260
Redline version of Ordinance Language