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HomeMy WebLinkAbout2260ORDINANCE 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. sec., 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. sue.; and 1 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: 2 2260 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; 3 2260 (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 4 2260 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 furnished 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. 2260 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. 6 2260 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, 7 2260 (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. 8 2260 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. 9 2260 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, 10 2260 (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. 11 2260 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 THERAPIST 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; 12 2260 (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: 13 2260 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. 14 2260 (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. 15 2260 (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. 16 2260 (O) 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. 17 2260 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 2260 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. 19 2260 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 2260 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. Passed, approved and adopted this 18th day of August , 2009. ATTEST: ity Clerk APPROVED AS TO FORM: Stephen Deitsch City Attorney of the City of Arcadia 21 2260 STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES) SS: CITY OF ARCADIA ) I, JAMES H. BARROWS, City Clerk of the City of Arcadia, hereby certifies that the foregoing Ordinance No. 2260 was passed and adopted by the City Council of the City of Arcadia, signed by the Mayor and attested to by the City Clerk at a regular meeting of said Council held on the 18th day of August, 2009 and that said Ordinance was adopted by the following vote, to wit: AYES: Council Member Amundson, Chandler, Harbicht, and Kovacic NOES: Council Member Wuo ABSENT: None ity Clerk of the City of Arcadia 22 2260