HomeMy WebLinkAboutORD 06(2016)ORDINANCE NO. 06(2016)
AN ORDINANCE OF THE CITY OF DIAMOND BAR AMENDING
FOLLOWING SECTIONS OF TITLE 5 OF THE MUNICIPAL CODE
PERTAINING TO BUSINESS LICENSING, MASSAGE
ESTABLISHMENTS, AND MASSAGE TECHNICIANS: 5.00.080;
5.04.010; 5.04.020; 5.04.050; 5.04.060; 5.04.070; 5.04.080; 5.04.100;
5.04.110; 5.04.130; 5.04.140; 5.08.010; AND 5.08.070.
THE CITY COUNCIL OF THE CITY OF DIAMOND BAR, CALIFORNIA,
HEREBY FINDS AND DETERMINES AS FOLLOWS:
A. The City Council desires to amend certain provisions of Title 5 of the
Diamond Bar Municipal Code to revise certain general provisions relating to the
issuance of business licenses and to make changes in the City's regulation of massage
establishment businesses and the practice of massage consistent with the provisions of
Assembly Bill 1147, which took effect on January 1, 2015.
B. The City Council finds that this Ordinance is not subject to the California
Environmental Quality Act ("CEQA") because it can be seen with certainty that the
proposed Code Amendments will not result in a direct or reasonably foreseeable
indirect physical change in the environment (Section 15060(c)(2) of the CEQA
Guidelines) and this Ordinance is covered by the general rule that CEQA applies only to
projects that have the potential for causing a significant effect on the environment
(Section 15061 (b)(3) of the CEQA Guidelines) and does not apply to organizational or
administrative activities of governments that will not result in direct or indirect physical
changes in the environment (Section 15378(b)(5) of the CEQA Guidelines).
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DIAMOND BAR
HEREBY ORDAINS AS FOLLOWS:
SECTION 1. Section 5.00.080 of Title 5, Chapter 5.08 of the Diamond Bar
Municipal Code is amended as follows:
Sec. 5.00.080. — Reserved.
SECTION 2. Section 5.04.010 (Investigation of specific businesses) of
Title 5, Chapter 5.04 of the Diamond Bar Municipal Code is amended as follows:
Sec. 5.04.010. — Investigation of specific businesses.
(a) Upon receipt of an application for one of the following businesses, the
director or his or her designee shall conduct an investigation and criminal
background check on the applicant(s), and managerial staff as deemed
necessary by the director, and may obtain reports from the sheriffs
department, building and safety, fire department, county health department,
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and any such other information as he or she deems necessary to determine
if the criteria for issuance of a business license have been met:
(1) Adult oriented businesses (as defined in section 22.80.020 of this Code).
(2) Alarm systems.
(3) Alcoholic beverage sales (off-site consumption).
(4) Bars, cocktail lounges and taverns.
(5) Computer services/network gaming center (as defined in section
22.80.020).
(6) Firearm dealers.
(7) Indoor amusement/entertainment facilities (as defined in section
22.80.020).
(8) Massage establishments.
(9) Pawnbrokers and secondhand dealers.
(10) Peddling -solicitation.
(11)Psychic reading (as defined in section 22.80.020 of this Code).
(12)Tow trucks and towing companies.
SECTION 3. Subsection (a)(4) of Section 5.04.020 (Application) of Title 5,
Chapter 5.04 of the Diamond Bar Municipal Code is amended as follows:
(4) Whether or not the applicant or any person or persons responsible for the
management or supervision of applicant's business have been within the
previous ten years, convicted of a crime, the nature of such offense, and the
sentence received therefore including conditions of parole or probation, if any;
SECTION 4. Subsection (a)(4) of Section 5.04.050 (Grounds for denial of
business license) of Title 5, Chapter 5.04 of the Diamond Bar Municipal Code is
amended as follows:
(4) Conviction of any crime within the past ten years where the trait shown is
inconsistent with carrying on the business, occupation, or activity for the benefit
of the public;
SECTION 5. Subsection (b) of Section 5.04.060 (Effect of business
license denial) of Title 5, Chapter 5.04 of the Diamond Bar Municipal Code is amended
as follows:
(b) Appealability. Any person dissatisfied by the city's decision to grant, deny or
condition a business license may appeal that decision to the city manager in
a manner provided section 5.04.080.
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SECTION 6. Subsection (b) of Section 5.04.070 (Conditions of approval)
of Title 5, Chapter 5.04 of the Diamond Bar Municipal Code is amended as follows:
(b) Application to change conditions. The director may change, modify or
eliminate any conditions previously placed on a license upon written request
if it finds that the reasons for the original imposition of such conditions have
been cured or no longer exist.
SECTION 7. Section 5.04.080 (Appeal) of Title 5, Chapter 5.04 of the
Diamond Bar Municipal Code is amended as follows:
Sec. 5.04.080. –Appeal
(a) Any person dissatisfied with a decision of the city to approve, deny or
condition a business license application may appeal the decision to the city
manager by filing with the city clerk a notice of appeal within 15 days of the
date of mailing of the decision.
(b) A notice of appeal shall be signed by the appellant or the legal representative
of the appellant and shall state that the appellant appeals from a specified
decision or a particular part thereof. The notice of appeals shall be
accompanied with the required appeal fee, as set by resolution of the city
council.
(c) If a timely appeal is filed, the effect of the decision shall be stayed pending
the city manager's resolution of the matter unless the director specifically
finds that the public health and safety is endangered, in which case the
decision shall take effect immediately.
SECTION 8. Section 5.04.100 (Appeals—Hearing procedure) of Title 5,
Chapter 5.04 of the Diamond Bar Municipal Code is as follows:
Sec. 5.04.100. - Appeals—Hearing procedure.
(a) The city manager shall conduct the appeal hearing de novo and shall hear
and consider evidence, argument and points and authorities of law, and may
require parties before it to submit such argument and points and authorities of
law prior to rendering any decision. The hearing will be held as provided in
section 5.04.130.
(b) The decision of the city manager shall be final.
SECTION 9. Section 5.04.110 (Modification, suspension or revocation) of
Title 5, Chapter 5.04 of the Diamond Bar Municipal Code is as follows:
Sec. 5.04.110. – Modification, suspension or revocation.
Any license issued by the city may be conditioned, modified, suspended or
revoked for cause by the director in accordance with .section 5.04.140.
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SECTION 10. Section 5.04.130 (Procedure for hearing) of Title 5, Chapter
5.04 of the Diamond Bar Municipal Code is amended as follows:
Sec. 5.04.130. — Procedure for hearing.
(a) The licensee or legal representative of the licensee shall have the right to
bring witnesses to testify on his or her behalf.
(b) Hearings need not be conducted according to technical rules relating to
evidence and witnesses.
(c) The director / city manager shall issue a decision in writing. The decision
shall contain a determination of the issues presented.
(d) Appeals of the director's decision shall follow the appeal procedures set forth
in sections 5.04.080 through 5.04.100.
SECTION 11. Section 5.04.140 (Grounds for revocation of business
license) of Title 5, Chapter 5.04 of the Diamond Bar Municipal Code is amended as
follows:
Sec. 5.04.140. — Grounds for revocation of business license.
The director may condition, suspend or revoke a business license if the director
finds any of the following:
(a) The applicant for the business license made a false statement in any
application for a license or permit or in any report required under this title;
(b) That any grounds or circumstances exist that would have justified denial of
a business license application;
(c) The licensee, manager or employees have failed to maintain the premises
in a neat and clean condition and have allowed the business premises to
deteriorate and become blighted;
(d) That the building, structure, or equipment used in the conduct of the
business does not comply with or fails to meet any health, zoning, fire, or
building and safety laws of the State of California or the Diamond Bar
Municipal Code;
(e) That the licensee, manager or employees have violated any statute or any
ordinance of the Diamond Bar Municipal Code resulting from any act
performed in the exercise of any rights permitted by the issuance of the
license;
(f) That the licensee, manager or employees have violated any provision of
federal or state law or any provision of the City of Diamond Bar Business
License Ordinance, the City of Diamond Bar Municipal Code or any other
statute, rule, permit or regulation on the business premises or relating to the
licensed activity;
(g) That the licensee has failed or refused to notify the city of any change in
facts as required by this title within ten days after such change;
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(h) That the licensee, manager or employees have permitted, allowed or failed
to prevent the use of the business as a base or magnet for unlawful or
criminal activity, including, but not limited to, solicitation, prostitution and
drug trafficking;
(i) The licensee, manager or employees have allowed or failed to discourage
criminal or otherwise unlawful activity to occur on or immediately adjacent
to the business premises;
(j) The licensee, manager or employees have failed to control the actions of
the businesses' patrons in and immediately adjacent to the business
premises; or
(k) That the licensee has conducted the licensed business in a manner
contrary to the peace, health, safety and the general welfare of the public.
SECTION 12. Section 5.08.010 (Acupressure) of Title 5, Chapter 5.08 of
the Diamond Bar Municipal Code is amended as follows:
Sec. 5.08.010. - Reserved.
SECTION 13. Section 5.08.070 (Massage establishments and massage
technicians) of Title 5, Chapter 5.08 of the Diamond Bar Municipal Code is repealed in
its entirety and replaced with new Section 5.08.070 to read as follows:
(a) Findings and Purpose. The city council finds and declares as follows:
(1) The permit requirements and restrictions imposed by this section are
reasonably necessary to protect the health, safety, and welfare of the citizens
of the city, while recognizing massage as a legitimate business interest that
provides benefits to its patrons in a therapeutic setting.
(2) The city is authorized to regulate massage establishments pursuant to the
State Constitution, Cal. Gov't Code §§ 37100, 51030 et seq., California
Business and Professions Code §§ 460, 4600 through 4620 and § 16000, § 13
of the Chiropractic Act (initiative measure approved by the electors November
7, 1922, and amended) and Section 7 of Article XI of the California
Constitution.
(3) There is a significant risk of injury to massage clients by improperly trained
and/or educated massage practitioners and this chapter provides reasonable
safeguards against injury and economic loss.
(4) There is opportunity for acts of prostitution, lewdness, and other unlawful
sexual activity to occur in massage establishments, as well as for the use of
massage establishments as venues to facilitate human trafficking. Courts have
long recognized massage as a pervasively regulated activity and that massage
establishments are often brothels in disguise. The establishment of reasonable
standards for issuance of permits and restrictions on operations would serve to
reduce the risk of illegal activity and would thereby benefit the public health.
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(5) The provisions of this section are intended to enhance the efficient processing
of permits for massage establishments, owners and managers and the ongoing
regulation of those permittees and certificate holders by the City of Diamond
Bar. The provisions of this chapter in no way limit the authority of the city to
inspect massage establishments or conduct investigations to ensure
permittees are complying with applicable rules and regulations.
(6) The restrictions and requirements contained in this section are intended to stop
the practice of businesses quickly changing ownership in name upon the
discovery of criminal activity by the city.
(7) The restrictions and requirements contained in this section are intended to be in
addition to the requirement of a valid business license issued pursuant to this
title.
(8) The regulations and restrictions contained in this section are intended to
discourage massage establishments from degenerating into houses of
prostitution, and the means utilized in this section bear a reasonable and
rational relationship to the goals sought to be achieved within the confines
allowed by state law.
(9) The provisions of this section are not intended to be exclusive, and compliance
therewith shall not excuse noncompliance with any state or local laws or
regulations that are uniformly applied to other professional or personal service
businesses.
(10) Pursuant to State law, the California Massage Therapy Council ("CAMTC")
regulates massage technicians in order to protect the public, and it is in the
public interest to require that all persons providing massage in the city have a
certificate from CAMTC.
(b) Exceptions. Except as otherwise expressly provided, the requirements of this
section shall have no application and no effect upon and shall not be construed as
applying to:
(1) Treatment of services administered or provided in good faith by a physician,
surgeon, chiropractor, acupuncturist, osteopath, physical therapist, nurse, or
any other person licensed to practice any healing art under the provisions of
Cal. Bus. & Prof. Code Div. 2 (commencing with § 500) while in the course of
engaging in practices within the scope of his or her professional license.
(2) State -licensed hospitals, nursing homes, sanatoriums, or other health care
facilities duly licensed by the State of California, or activities engaged in by the
employees of such facilities in the course of their employment while working on
the premises of such state -licensed facilities.
(3) The activities of coaches or trainers employed by accredited junior high
schools, high schools, junior colleges, colleges or universities while acting
within the scope of their employment.
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(4) Barbers, beauticians, or manicurists who are duly licensed by the State of
California pursuant to the Barbering and Cosmetology Act set forth in Cal. Bus.
& Prof. Code §§7300 et seq., as the same may be amended from time to time,
while engaging in practices within the scope of such license, except that this
exemption applies solely for the massaging of the neck, face, and/or scalp of
the customer or client of said barber or beautician or, in the case of a licensed
manicurist, the massaging of the forearms, hands, calves, and/or feet at a
state -licensed facility. Any business employing state -licensed barbers,
beauticians, or manicurists at which massage services not otherwise exempted
pursuant to this section are also provided shall be considered a massage
establishment and must comply with all provisions of this section.
(5) Schools of cosmetology or barbering which comply with the requirements of
Cal. Bus. & Prof. Code §§7362 et seq. when instructors are acting within the
scope of their employment or when students are working as unpaid externs
pursuant to the requirements of Cal. Bus. & Prof. Code §7395.1.
(6) Activities of any other business or professions to the extent exempted by state
law.
(c) Definitions. For purposes of this section, the following terms shall have the following
meanings:
(1) Acupressure means the practice of placing physical pressure by hand, elbow,
or with the aid of various devices on the same points on the surface of the
body targeted in acupuncture with the intention of treating illness and/or
disease or relieving pain.
(2) California Massage Therapy Council or CAMTC means the nonprofit
organization created to regulate and issue massage practitioner and therapist
certificates pursuant to California Business & Professions Code §§4600 et.
seq.
(3) CAMTC Certificate shall mean a certificate, issued by CAMTC, certifying
completion of the required curriculum in massage training.
(4) Employee includes every owner, partner, operator, manager, supervisor,
person and worker, whether paid or not, full-time or part-time, who renders
personal services of any nature or is otherwise employed in support of the
operation of a massage establishment. For purposes of this chapter, the
terms employee shall also include certified massage technicians who provide
massage services, whether as independent contractors or otherwise, in or for
a massage establishment.
(5) Manager means any individual designated or permitted by the owner of a
massage establishment to act as the representative and/or agent of the owner
in managing day-to-day operations of the massage establishment, with
corresponding responsibilities. Evidence of management includes, but is not
limited to, the ability of the individual to direct or hire and dismiss employees,
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control hours of operation, create policy or rules or purchase supplies, and
ensuring that the massage establishment complies with the requirements of
this code and of other laws. An owner or operator may also be a manager,
and a massage establishment may have more than one manager.
(6) Massage and Massage Services means any method of treating the external
parts of the body for remedial, health, hygienic, or relaxation purposes for
compensation and includes, but is not limited to, treatment by means of
manual pressure, acupressure, friction, stroking, kneading, rubbing, tapping,
pounding, vibrating, with or without the aid of or by means of any mechanical,
electronic, or other apparatus, and with or without rubbing alcohol, liniments,
aromatics, antiseptics, oils, powders, creams, lotions, ointments, or other
similar preparations. Massage specifically includes the application of any of
these methods to the scalp, neck, or feet of any individual.
(7) Massage Establishment shall mean any business or establishment having a
fixed location where any individual, firm association, partnership, limited
liability company, corporation, or combination of individuals, offers, engages
in, conducts, carries on or permits to be offered, engaged in, conducted or
carried on, massage services or out -call massage within the city, including the
residence or business office of a sole provider who provides massage
services at such premises. Any type of business or establishment at which
massage services are provided shall be considered a massage establishment
for purposes of this chapter, regardless if the business holds itself out as
something other than a massage establishment and/or offers or provides
other types of products or services. Notwithstanding the foregoing, the
residence or business office of a sole provider who only engages in out -call
massage and does not provide massage services at such residence or
business office shall not be considered a massage establishment.
(8) Massage Practitioner means a person who is certified as such by CAMTC in
accordance with the Massage Therapy Act.
(9) Massage Technician shall mean a massage practitioner or massage
therapist certified by CAMTC.
(10)Massage Therapist means a person who is certified as such by CAMTC in
accordance with the Massage Therapy Act.
(11)Massage Therapy Act means chapter 406 of the 2013-2014 Legislative
Session, as the same may be amended from time to time.
(12)Operator means any individual with direct responsibility, in whole or part, for
the ongoing operations of a massage establishment. An operator may, but
need not, also be an owner or a manager.
(13)Out-Call Massage means the provision of massage services at a location
other than at a massage establishment.
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(14) Owner means any individual or entity that has a direct or indirect ownership
interest of more than ten percent (10%) in a massage establishment or that is
an officer, director, or limited liability company manager of such an owner.
The term owner may include, without limitation, the sole proprietor of a sole
proprietorship, any general or limited partner of a general or 'limited
partnership, any member or manager of a limited liability company, any
shareholder, officer, or director of a corporation, or any other person that has
an ownership interest of more than ten percent (10%) in a massage
establishment, whether as an individual, corporation, limited liability
company, general partner, limited partner, shareholder, member, officer,
director, or otherwise.
(15)Patron means an individual on the premises of a massage establishment for
the purpose of receiving a massage.
(16)Sole Provider means any legal form of business organization owned entirely
by an individual massage technician, where such owner is the only individual
who provides massage services for the business and that has no other
employees or independent contractors that provide massage services for or
on behalf of the business.
(d) CAMTC Certificate and business license requirements for massage services.
(1) Except as otherwise provided in subsection (b), no individual shall engage in,
conduct, carry on, practice or perform massage services within the city without
first obtaining and thereafter maintaining a CAMTC Certificate and presenting
proof of such CAMTC Certificate to the city in accordance with the provisions of
this section.
(2) Except as otherwise provided in subsection (b), no person shall engage in,
conduct or carry on, or permit to be engaged in, conducted, or carried on, in or
upon any premises within the city, the operation of a massage establishment
without first obtaining and thereafter maintaining a massage establishment
business license pursuant to this section.
(3) No owner, operator, or manager of a massage establishment shall employ,
retain, or allow any individual to perform massage services in the city unless
such individual possesses a current and valid CAMTC Certificate. For
purposes of this section, an owner, operator, or manager employs, retains, or
allows an individual to perform massage services if (i) that individual is an
employee of the massage establishment, (ii) that individual's association with
the massage establishment is that of an independent contractor who receives
compensation for massage services provided to patrons of the massage
establishment, or (iii) that individual receives a patron referral or referrals from
the massage establishment for massage services and arranges in any way for
compensation relating to such services to flow to such owner, operator,
manager or massage establishment.
(e) Massage establishment business licenses generally.
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(1) Where a conditional use permit is required pursuant to title 22, a business
license application for a massage establishment shall be filed concurrently with
the conditional use permit application. The business license for the massage
establishment shall not be issued until the conditional use permit has been
approved.
(2) Massage establishment business licenses issued pursuant to this chapter may
not be assigned or transferred.
(3) The owner or operator of a massage establishment shall notify the director or
his or her designee whenever there is a change in information which was
required to be submitted in the initial or a renewal application for the massage
establishment's business license. Such notification shall be in writing and made
within ten business days of the change on a form provided by the city. If such
change involves the addition of a new operator, manager, or employee who will
be providing massage services, a true and correct copy of the individual's
current CAMTC certificate and CAMTC-issued identification card shall be
provided with the written notification form. If such change involves the addition
of a new owner, operator, or manager, such individual shall not commence
working at or for the massage establishment in such capacity until all
background information required for such individuals pursuant to subsection
5.08.070(f) has been provided to the city, the city has completed a background
investigation of the individual, and the director has determined that such
individual has not engaged in prior conduct that would serve as the basis for
denial of a business license for the massage establishment in accordance with
this chapter.
(4) Each owner, operator, and manager of a massage establishment shall be
responsible for the conduct of all employees and independent contractors
working for or on behalf of the massage establishment. Failure of the
employees or independent contractors to comply with the provisions of this
chapter or the Massage Therapy Act may result in the issuance of criminal
and/or administrative citations and shall be grounds for revocation of the
massage establishment business license.
(5) Any requirement of this section applying to an owner or operator shall apply to
each and every owner and operator of a massage establishment.
(t) Application information—Massage establishment businesses. In addition to the
information prescribed by sections 5.00.040(c) and 5.04.020, unless waived by the
director for good cause, all applications for a business license for a massage
establishment must contain the following information and documents.
(1) The full name, home and business addresses, home and business telephone
numbers, and email address of the responsible individual designated by the
applicant to be the City's primary point of contact for the massage
establishment and the business license. This individual shall be an owner or
operator and shall complete and sign all application forms and provide all
required information and documents on behalf of the applicant. By signing the
application, this individual shall certify under penalty of perjury that all
information contained in, and/or submitted as part of the application, including
the personal background information pertaining to each individual owner,
operator, manager, and employee, is true and correct. This individual shall also
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acknowledge that he or she, along with each other owner, operator, and
manager, shall be responsible for the conduct of all employees (including
independent contractors) on the premises of the massage establishment or
while working on its behalf, and that violations of the provisions of this chapter
shall be grounds for revocation of the business license.
(2) The legal name(s) of, and each fictitious business name used by, each owner
and operator of the proposed massage establishment and what type of legal
entity each is, i.e., whether a sole proprietorship, general partnership, limited
partnership, limited liability company, corporation, or otherwise. Proof in the
form of certified copies of an entities articles of incorporation, charter, articles of
formation, certificate of limited partnership, dba filings, or other documents may
be required by the director in his or her discretion. For corporations, the name
of the corporation shall be set forth exactly as shown in its articles of
incorporation or charter together with the state and date of incorporation and
the names and residence addresses of each of its current officers and directors,
and of each shareholder or other person who has an ownership interest in the
corporation. For limited liability companies, the name of the limited liability
company shall be set forth exactly as shown in its articles or organization or
other organizational document together with the state and date of organization
and the names and residence addresses of each of its current officers,
directors, and managers, and of each member or other person who has an
ownership interest in the limited liability company. For partnerships, the
application shall set forth the name and residence addresses of each of the
partners, including limited partners. If one or more of the partners of a
partnership is a corporation or limited liability company, the provisions of this
subsection pertaining to corporations and limited liability companies shall apply.
(3) The precise name under which the massage establishment is to be conducted,
along with the complete address and all telephone numbers of the massage
establishment. No massage establishment shall operate under any business
name or conduct business under any designation not specified in the business
license.
(4) A scaled and dimensioned floor plan showing entrances, exits, windows, interior
doors, restrooms, all other separately enclosed rooms (including, but not limited
to, closets, storerooms, break rooms, and changing rooms), and the location of
massage tables and chairs.
(5) A complete current list of the names and residence addresses of all current or
proposed employees of the massage establishment and their respective jobs or
positions.
(6) True and correct copies of the current CAMTC certificate and CAMTC-issued
identification card for each employee/massage technician who will be providing
massage services for or at the massage establishment (including independent
contractors).
(7) The following personal information for each individual owner, operator, and
manager of the massage establishment. The director may waive this
requirement, in whole or in part, for any individual where it is shown to the
satisfaction of the director that such individual will not be directly involved in the
operation of the proposed massage establishment.
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a. Full complete name and all aliases or fictitious names used within the last
ten years;
b. The individual's current residential and business addresses, and a list of
all previous residential and business addresses for a minimum of the last
eight years;
C. Written proof of the individual's age, date of birth, height, weight, color of
hair and eyes, and sex;
d. Two identification photographs and fingerprints;
e. The individual's complete business, occupation and employment history
for the ten years immediately preceding the filing of the application,
including, but not limited to, the names and addresses of any other
massage establishments or similar businesses the individual has owned,
operated, managed, provided massage services at, or worked at;
f. The complete massage permit history for the individual; whether the
individual has had a permit or license to operate, manage, provide
massage services at, or work at a massage establishment denied,
revoked, or suspended in any jurisdiction; the reasons for any such denial,
revocation, or suspension; and the business, activity, or occupation the
applicant engaged in subsequent to such denial, revocation, or
suspension;
g. A description of all criminal convictions, including pleas of nolo
contendere, within the last ten years, including those dismissed or
expunged pursuant to California Penal Code section 1203.4, but excluding
traffic or infraction violations, and the date and place of each such
conviction and reason therefor;
h. Such other information and identification deemed necessary by the
sheriffs department.
(8) The name and address of the owner and lessor of the real property upon or in
which the massage establishment is to be conducted. In the event the owner of
the massage establishment is not the legal owner of the property, the
application must be accompanied by a notarized acknowledgment from the
owner of the property that a massage establishment will be located on
his/her/its property, and that the massage establishment shall be subject to the
provisions of this chapter, along with a copy of the lease, if applicable.
(g) Issuance or denial of a massage establishment business license. Upon receipt of a
complete application for a massage establishment business license, the director
shall conduct a background investigation, review the application and determine
whether to issue, deny, and/or condition a business license in accordance with this
title. In addition to the grounds for denial set forth in section 5.04.050, the director
may deny an application for an initial or a renewal massage establishment business
license if he or she makes any of the following findings:
(1) A massage establishment is not a permitted use in the proposed location or no
conditional use permit for the massage establishment has been issued, if
applicable, and the massage establishment does not possess legal
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nonconforming use status, pursuant to the provisions of title 22, Development
Code.
(2) Within twelve months prior to the submittal of the application, the location of the
proposed massage establishment has been the site of a massage
establishment that was closed, either voluntarily or in response to action by the
city, due to arrests for criminal activity, violations of this section, and/or notices
pertaining to criminal activity, code violations, or business license suspension or
revocation proceedings.
(3) Anyone who provides or will provide massage services for or at the massage
establishment, does not possess a current and valid CAMTC Certificate.
(4) Any owner, operator, manager, or employee of the massage establishment has
engaged in disqualifying conduct. Disqualifying conduct includes the following:
a. Within ten years preceding the date of filing of the application, the
individual has been convicted in a court of competent jurisdiction of any of
the following:
(i) A violation of any provision of law pursuant to which a person is
required to register under the provisions of California Penal Code
section 290;
(ii) Conduct in violation of California Penal Code sections 266h, 266i,
315, 316, 318, 653.22, 653.23, or 647 (b);
(iii) An attempt to commit or conspiracy to commit any of the above
mentioned offenses;
(iv) When the prosecution accepted a plea of guilty or nolo contendere
to a charge of a violation of California Penal Code sections 415,
602, or any lesser included or related offense, in satisfaction of, or
as a substitute for, any of the previously listed crimes;
(v) Any crime committed while engaged in the management or
ownership of a massage establishment or the practice of massage;
(vi) A violation of any offense involving the illegal sale, distribution or
possession of a controlled substance specified in California Health
& Safety Code section 11054, 11055, 11056, 11057 or 11058; or
(vii) Any offense under a statute of any state or ordinance of any city or
county, which is the equivalent of any of the aforementioned
offenses, including California Business & Professions Code section
4609(a).
b. Within ten years preceding the date of the filing of the application, the
individual has had any massage establishment, operator, technician,
practitioner, therapist, or trainee certificate, license, or permit issued by
any state, local agency, or other licensing authority, including the CAMTC,
denied, revoked, or suspended for any reason other than lack of sufficient
education; or has had to surrender such a certificate, license, or permit as
a result of pending criminal charges or administrative proceedings for
suspension or revocation of any such certificate, license, or permit;
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C. Within ten years preceding the date of filing of the application, the
individual has been convicted in a court of competent jurisdiction of any of
the following:
(i) Any crime, other than an infraction or those listed above, involving
dishonesty, fraud, or deceit with the intent to substantially benefit
himself or another, or substantially injure another;
(ii) Any crime, other than an infraction or crimes relating to those
offenses listed above, where the crime or act is substantially related
to the management or ownership of a massage establishment or
the practice of massage, including a violation of the Massage
Therapy Act;
(iii) Has been subjected to a permanent injunction against the
conducting or maintaining of a nuisance pursuant to California
Penal Code sections 11225 through 11235, as the same may be
amended from time to time, or any similar provisions of law in a
jurisdiction outside the State of California; or
(iv) Has been found to be maintaining a nuisance in connection with the
same or similar type of business; or
d. Within ten years preceding the date of filing of the application, the
individual has engaged in the exposing of specified anatomical areas of
oneself or of another person to view, or in touching the specified
anatomical areas of oneself or of another person, while providing massage
services or while within view of a customer or patron of the massage
establishment, or has been the owner, operator, or manager of an
establishment where such conduct occurred.
(h) Renewal of massage establishment business licenses
(1) Business licenses for massage establishments shall be renewed annually in
accordance with this title.
(2) Each applicant for renewal of a massage establishment business license shall
provide such information and documents as may be reasonably required by the
director to determine that the massage establishment is operating in
compliance with the provisions of this title and/or any conditions imposed on the
business license. The director may refuse to renew a business license for a
massage establishment upon finding the existence of any facts or
circumstances that would constitute grounds for the denial or revocation of a
business license.
(i) Requirements of operation for massage establishments. The following
requirements of operation shall apply to all massage establishments located in the
city. Each owner, operator, and manager of a massage establishment shall be
responsible for ensuring that the requirements of operation are complied with at all
times.
(1) Building and facility requirements.
a. All massage rooms and dressing rooms shall be screened off by hinged
doors, draw drapes, curtain enclosures, or accordion -pleated closures.
Except for bathroom doors, interior doors shall not have locks on them.
iCl
b. In addition to the minimum lighting required by Chapter 15.00 Division 6 of
the Municipal Code, all rooms in which massages are being provided shall
be lit with a minimum of one light fixture emitting at least 210 lumens for
every 150 square feet of space during the administration of such services,
with lighting levels spread evenly throughout the space. No dimmer
switches, strobe lights, flashing lights, colored light, or any coverings or
other apparatus, other than a lampshade, which changes or darkens the
color of the primary light source shall be used in any room in which
massage services are being provided.
C. Any locker facilities provided for the use of patrons shall be fully secured
for the protection of the patrons' valuables, and the patron shall be given
control of the key or other means of access.
d. The walls in all rooms where water or steam baths are given shall have a
washable mold -resistant surface.
e. One main entry that enters into the reception area shall be provided for
patron use. Where feasible, this main entry shall be located on the
storefront side of the building or tenant space. All patrons, and any
persons other than those providing services at the massage
establishment, shall be required to enter and exit solely through the main
entry.
f. All exterior doors (except rear exterior doors used only for employee
access to and from the massage establishment) shall remain unlocked
during business hours, and the establishment shall comply with the
provisions of the Diamond Bar Municipal Code pertaining to the posting of
signs stating that doors shall remain unlocked during business hours.
Exits for emergency purposes shall be provided where deemed necessary
by the building official. Notwithstanding the above, all exterior doors may
be locked, provided that the massage establishment is a business entity
owned by one individual with one or no employees or independent
contractors.
g. There shall be no audio or visual internal communication devices within
the establishment, such as, but not limited to, buzzers, alarms, or intercom
systems.
(2) Maintenance of premises and equipment.
a. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms and all
other physical facilities of the establishment shall be in good repair and
maintained in a clean and sanitary condition.
b. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets,
shower compartments and toilet rooms shall be thoroughly cleaned each
day the business is in operation.
c. Adequate equipment for disinfection and sterilization of instruments used in
performing the massages shall be provided.
d. Hot and cold running water shall be provided at all times.
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e. Clean and sanitary towels and linens shall be provided for each patron of
the establishment or each patron receiving massage services. No common
use of towels or linens shall be permitted.
f. Standard or portable massage tables or chairs shall be used with a durable,
washable plastic or other waterproof material as a covering. Beds,
mattresses, water beds, futons, sofa beds, any type of portable or
convertible beds, and foam pads more than four inches thick or with a width
of more than four feet shall not be permitted in the establishment.
(3) Personnel lists.
a. Copies of the CAMTC certificate and identification card for each employee
required to possess a CAMTC certificate pursuant to this chapter shall be
maintained on file on the premises of the massage establishment at all times,
and for a minimum period of two years following the date that the person
ceases providing services/employment to the massage establishment.
Copies shall be made available to any individual upon request, including but
not limited to employees of the city. In addition, within ten days of a massage
establishment hiring or contracting with a new employee, written notice of the
name, residential address, and position of the new employee and true and
correct copies of his or her CAMTC certificate and identification card (if
required) shall be filed with the director.
b. Within five days of the expiration, revocation, suspension, or surrender of an
employee's CAMTC Certificate, the owner or operator shall provide written
notice of such expiration, revocation, suspension, or surrender to the director,
and such employee shall not be permitted to operate, manage or provide
massage services at the massage establishment until and unless a he or she
receives a valid new or renewed CAMTC Certificate and a copy of such new
CAMTC Certificate and identification card for the employee has been
provided to the director.
c. A register of all persons who are currently, or who within the last two years
were, employed, working or providing services at or for the massage
establishment shall be maintained on the premises of the massage
establishment at all times. The owner shall make the register immediately
available for inspection upon demand of a representative of the .sheriff's
department, any health officer, or any other official charged with enforcement
of this title. The register shall include at least the following information:
1) Name, nicknames, and/or aliases;
2) Home address and relevant phone number, including but not
limited to home, cellular, and pager numbers;
3) Age, date of birth, gender, height, weight, color of hair and eyes;
4) The date of employment, and termination, if any;
5) The duties of each person.
(4) Hours of operation.
a. No massage establishment shall be open for business or operated
between the hours of 10:00 p.m. and 7:00 a.m. of any day, and all
customers, patrons and visitors shall be excluded from the massage
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establishment between those hours. A massage begun any time before
10:00 p.m. shall nevertheless terminate at 10:00 p.m. The hours of
operation shall be displayed in a conspicuous public place in the lobby
within the massage establishment and in any front window outside of the
massage establishment.
b. During hours of operation, only employees of the massage
establishment or a patron shall be allowed beyond the reception area of
the massage establishment, with the exception of representatives of the
sheriff's department, any health officer, any other official charged with
enforcement of this title, or a CAMTC official.
c. Patrons and visitors shall only be permitted in the massage
establishment during the hours of operation.
(1) Visitors who are not patrons shall only be permitted in the reception
area of the massage establishment.
(2) Patrons shall only be permitted in massage treatment areas if at
least one massage technician is on the premises.
d. The massage establishment shall be supervised during all hours of
operation by a manager specified in the permit application. The name
and photograph (minimum size of four inches by six inches) of the on -
duty manager shall be provided in accordance with Section
5.08.070(i)(3)c. This provision shall not apply to sole providers.
e. No massage establishment shall be used for residential purposes.
(5) Posting requirements. In addition to any other requirements for posting set forth
in this title, the following requirements shall apply:
a. A recognizable and legible sign complying with the requirements of this
code shall be posted at the main entrance identifying the establishment
as a massage establishment.
b. Each service offered, the price thereof, and the minimum length of time
such service shall be performed shall be posted in a conspicuous public
location in each massage establishment. No services shall be performed
and no sums shall be charged for such services other than those posted.
Nothing herein prohibits a voluntary tip from being paid by the patron.
Such services may either be posted on a sign or printed in a menu of
services.
c. Any posted signs which are in a language other than English shall also
be posted in English.
(6) Prohibited conduct. Each owner, operator, and manager shall be responsible for
the conduct of all employees while such employees are performing services at or
for the massage establishment. Any act or omission of any employee
constituting a violation of this chapter shall be deemed an act or omission of each
of the owners, operators, and managers for purposes of determining compliance
with this chapter and whether the business license or any other permit required
by the city shall be revoked, suspended, denied, or renewed. In addition to
conduct prohibited by any other provision of law or this code, the following
conduct at or by employees of massage establishments is expressly prohibited:
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a. No alcoholic beverages shall be sold, served, or furnished on the
premises of any massage establishment unless expressly authorized
under a conditional use permit and licensed by the Department of
Alcoholic Beverage Control.
b. No storage or sale of condoms, spermicides or other makeshift
prophylactic materials (e.g. plastic wrap) shall be permitted within the
massage establishment.
c. No person shall use or possess, nor shall there be any storage of, any
sexually -oriented implements or paraphernalia which are designed or
marketed primarily for the stimulation of human genital organs or
sadomasochistic activity.
d. No electrical, mechanical, or artificial device shall be used by any
massage establishment employee for non -security audio and/or video
recording or for monitoring the performance of a massage, of the
conversation or other sounds in the massage rooms, without the prior
written consent of the patron.
e. No employee of a massage establishment shall, while engaged in the
practice of massage, or while visible to patrons in the massage
establishment, dress: (i) in attire that is transparent, see-through, or
substantially exposes the employee's undergarments; (ii) in a manner
that exposes the massage technician's breasts, buttocks, or genitals; (iii)
in a manner which has been deemed by CAMTC to constitute
unprofessional attire based on the custom and practice of the profession
in California; or (iv) in swim attire unless such person is providing a
water-based massage modality which has been approved by CAMTC.
f. No owner, operator, manager or employee of a massage establishment
shall engage in, or permit any other employee to engage in, any form of
unprofessional conduct as defined in California Business and
Professions Code section 4609(a)(1), including, without limitation,
engaging in any form of sexual activity on the premises of a massage
establishment or while providing massage services, providing massage
of the genitals or anal regions, or providing massage of the breasts of a
female patron without the written consent of the person receiving the
massage and a referral from a licensed California health care provider.
0) Inspections.
(1) Representatives of the sheriff's department, fire department, community
development department, and agents for the city or from the County Public
Health Department, and representatives of any state or local agencies with
regulatory authority over massage establishments shall have the right to enter
massage establishments, from time to time, during regular business hours, or
at any time that the massage establishment is occupied or open for business,
to verify the massage establishment is in compliance with all applicable laws
without the need for an inspection or abatement warrant. No person shall
refuse to permit, cause delay of, or interfere with, a lawful inspection or
compliance check of the premises by such officials at any time.
IF
(2) The operator shall cause to be conspicuously posted so that the same may be
readily visible to persons in the reception area of the massage establishment, in
letters that are a minimum of one inch in height, a notice in English and such
other languages as may be convenient to communicate such notice, which
provides substantially as follows:
THIS MASSAGE ESTABLISHMENT IS SUBJECT TO INSPECTION BY CITY
AND HEALTH OFFICIALS WITHOUT PRIOR NOTICE
In addition, operators are encouraged to post this notice in language(s) that are
best understood by the customers of the massage establishment.
SECTION 14. If any section, subdivision, paragraph, sentence, clause or
phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such
decision shall not affect the validity of the remaining portions of this Ordinance. The City
Council hereby declares that it would have passed this Ordinance, and each section,
subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact
that any one (or more) section, subdivision, paragraph, sentence, clause or phrase had
been declared invalid or unconstitutional.
SECTION 15. The City Clerk shall certify to the passage and adoption of
this Ordinance and shall cause the same or a summary thereof to be published once
within fifteen (15) days after this ordinance is passed and adopted, in a newspaper of
general circulation, published and circulated in the City of Diamond Bar and shall post a
certified copy of this Ordinance, together with the vote for and against the same, in the
Office of the City Clerk.
PASSED, APPROVED AND ADOPTED THIS 1st DAY OF November 2016, BY
THE CITY COUNCIL OF THE CITY OF DIAMOND BAR.
Naricy A. Lyons Mayor
W
I, Tommye Cribbins, City Clerk of the City of Diamond Bar, do hereby certify that the
foregoing Ordinance was duly introduced at the regular meeting of the City Council of
the City of Diamond Bar held on the 18th day of October, 2016, and was finally passed
and adopted by the City Council of the City of Diamond Bar, at a regular meeting of the
City Council held on the 1st day ofNo«.r 2016, by the following vote:
AYES: Council Member: Herrera, Low, Tye, MPT/Lin, M/Lyons
NOES: Council Member: None
ABSTAIN: Council Member: None
ABSENT: Council Member: None
a
ATTEST: V,
Tom4e Cribbins, City Clerk
City of Diamond Bar
a
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