HomeMy WebLinkAbout03/19/2018
B A K E R S F I E L D
Staff: Committee Members:
Steven Teglia, Assistant City Manager Councilmember, Chris Parlier - Chair
Councilmember, Jacquie Sullivan
Councilmember, Andrae Gonzales
Regular Meeting of the
Legislative and Litigation Committee
of the City Council – City of Bakersfield
Monday, March 19, 2018
12:00 p.m.
City Hall North, First Floor, Conference Room A
1600 Truxtun Avenue, Bakersfield CA 93301
A G E N D A
1. ROLL CALL
2. ADOPT FEBRUARY 26, 2018 AGENDA SUMMARY REPORT
3. PUBLIC STATEMENTS
4. DEFERRED BUSINESS
A. Continued Discussion Regarding Massage Ordinance Penalties
– Iger
5. COMMITTEE COMMENTS
6. ADJOURNMENT
/s/ Steve Teglia
B A K E R S F I E L D
Committee Members
Staff: Steve Teglia Councilmember, Chris Parlier, Chair
Assistant City Manager Councilmember, Jacquie Sullivan
Councilmember, Andrae Gonzales
SPECIAL MEETING OF THE
LEGISLATIVE AND LITIGATION COMMITTEE
Monday, February 26, 2018
12:00 p.m.
City Hall North, First Floor, Conference Room A
1600 Truxtun Avenue, Bakersfield, CA 93301
AGENDA SUMMARY REPORT
The meeting was called to order at 12:06 p.m.
1. ROLL CALL
Committee members Present:
Councilmember, Chris Parlier, Chair
Councilmember, Andrae Gonzales
Committee members Absent:
Councilmember, Jacquie Sullivan
City Staff:
Alan Tandy, City Manager
Steve Teglia, Assistant City Manager
Brianna Carrier, Management Assistant
Virginia Gennaro, City Attorney
Richard Iger, Deputy City Attorney
Viridiana King, Associate Attorney
Joe Dougherty, Bakersfield Police Lieutenant
William Toler, Bakersfield Police Sergeant
Others Present:
Members of the Public
2. ADOPT MAY 22, 2017 AGENDA SUMMARY REPORT
The Report was adopted as submitted.
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3. PUBLIC STATEMENTS
There were no public statements.
4. DEFFERED BUSINESS
A. Continued Discussion Regarding Massage Ordinance Penalties – Iger
Deputy City Attorney Iger provided a brief presentation regarding the massage
ordinance including background information regarding the proposed changes to
the massage ordinance discussed at the Committee meeting held on May 22,
2017; proposed changes include: requiring individuals who own, manage, and or
operate a massage business to acquire an establishment permit for the location,
require massage therapists to acquire certification from the California Massage
Therapy Council (CAMTC), and to extend the denial, refusal, or revocation period
from 90 days to one year.
Doug Bennett with People Against Trafficking Humans stated his organization is
concerned with the high rate of prostitution and human trafficking that can be
associated with massage parlors. He supported the regulation of massage parlors
through the CAMTC.
Dustin Contreras with Kern Coalition Against Human Trafficking stated he agreed
with Mr. Bennett’s comments and cautioned that tougher regulation would only
cause the prostitution issue to go underground. He stated legislation needs to be
changed to make the massage businesses more transparent; abolishing human
trafficking will deter illegal massage parlors.
Victoria Wolf, a local massage therapist, stated she has worked in the industry for
18 years and would like to see a grandfather clause option extended to massage
therapists who have been in the industry for as long as she has. She stated it
would be very difficult for her to be able to acquire CAMTC certification and
continue working full time. It would take more than a year to complete the
additional hours required to meet CAMTC certification standards.
Beverly May, Director of Governmental Affairs with CAMTC stated the current law
did include a grandfather clause which expired on December 31, 2014. New
applicants must complete 500 hours at an approved CAMTC school. Ms. May
stated individuals can contact their legislators for any changes to the law.
City Manager Tandy asked if past credits acquired by massage therapist, who
have attended continued education courses, are taken into consideration by
CAMTC as part of the 500 hour requirement.
Ms. May stated CAMTC cannot accept and apply continuing education courses
to the 500 hour requirement; a maximum of 200 hours can be accepted if the
courses were completed at an approved CAMTC school.
Karen Keller, a massage therapist, stated she has been a massage therapist for
approximately 19 years and cannot afford to complete the CAMTC requirements
and that the new requirement would have a big impact to older massage
therapists in the business.
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Committee member Gonzales asked what the current CAMTC certification
requirements are and what the estimated costs were to complete such
requirements.
Ms. May stated requirements for CAMTC certification include the following:
completion of 500 hours of ongoing education at a CAMTC approved school;
passing of an approved national exam like the Massage and Bodywork Licensing
exam developed by the Federation of Massage Therapy Board; payment of a
one-time background check fee; and payment of a $150 fee for a two-year
certification. Due to the number of private schools, national accredited schools,
and community colleges schools, approved by CAMTC, the cost can vary.
Ms. Wolf and Keller stated they have spent from $400 to $1,000 respectively, for
ongoing education in the current year.
Kristin Smith inquired about what charges are faced by those who are arrested.
Deputy Attorney Iger stated charges range from prostitution to violation of
multiple municipal codes.
Committee member Gonzales requested staff provide the number of licensed
massage therapists who are arrested for an underlying issue like prostitution.
Meladi Moret asked what effects the code changes would have on individuals
who did not study in California.
Ms. May stated CAMTC has the authority to recognize national accredited
schools; if the school where the education was acquired was recognized by the
state, it will be considered by CAMTC.
Debbie McCown stated she has been a massage therapist for 18 years and thinks
that massage therapists who have been practicing for such an extended period
of time should not be penalized and required to acquire a certification from the
CAMTC due to the behaviors and practices of establishments who are performing
illegal acts.
The Committee called a brief recess at 12:46 pm and reconvened at 12:50 pm.
John Manning stated that he is married to a licensed Asian massage therapist
who has been in the business and has run her own establishment for more than 10
years; the proposed ordinance changes will impacted her as well. He stated that
those who have been practicing legitimately for a prolonged amount of time
should not be punished and required to acquire CAMTC certification.
Committee Chair Parlier requested staff prepare an ordinance which includes a
grandfather clause section which will apply to current licensed massage therapists
who have been actively practicing for over a 10-year period. They are to be in
good standing and have no prior involvements with law enforcement. A list should
be established and included from the current active city licensed massage
therapists. The item will return to the Committee for further review and discussion.
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City Attorney Gennaro clarified that staff will return the current proposed
ordinance including the addition of incorporating a time clause which will give
permit holders one year from the effective date of the ordinance to be CAMTC
certified; and a second ordinance containing the grandfather clause as
described above. In addition, staff will review the fee schedule for any possible
adjustments or changes.
5. NEW BUSINESS
A. Discussion and Committee Recommendation Regarding the Adoption of 2018
Committee Meeting Schedule
The calendar was adopted as submitted.
6. COMMITTEE COMMENTS
There were no committee comments.
7. ADJOURNMENT
The meeting adjourned at 1:08 p.m.
Page 1 of 15 Pages
ORDINANCE NO.________________
AN ORDINANCE REPEALING AND REPLACING
CHAPTER 5.32 OF THE BAKERSFIELD MUNICIPAL
CODE RELATING TO MASSAGE PROFESSIONALS
AND MASSAGE ESTABLISHMENTS.
BE IT ORDAINED by the Council of the City of Bakersfield as follows:
SECTION 1.
Chapter 5.32 of the Bakersfield Municipal Code is hereby repealed in
its entirety and replaced with the following:
Chapter 5.32 MASSAGE
5.32.010 Definitions.
5.32.020 CAMTC—Certificate required.
5.32.030 Massage establishment—Permit required.
5.32.040 Application for establishment permit, fee.
5.32.045 Renewal.
5.32.050 Establishment permit—Investigation, approval or denial.
5.32.060 Exemptions.
5.32.070 Permit denial, revocation, non-renewal.
5.32.080 Regulations.
5.32.090 Prohibited conduct.
5.32.100 Violation and penalty.
5.32.110 Appeal.
5.32.120 Severability.
5.32.130 Practitioner Permit Exemption Option.
5.32.010 Definitions.
Whenever used in this chapter, unless a different meaning clearly
appears from the context, the words set out in this section shall have the
following meanings:
A. “Massage” means the systematic manual or mechanical
manipulations of the soft tissues of the body by such movements as rubbing,
stroking, kneading, pressing, tapping, pounding, vibrating, rolling,
compression and friction, for the purpose of promoting circulation of the
blood and lymph, relaxation of muscles, relief from pain, restoration of
metabolic balance, neuromuscular reeducation, prevention, rehabilitation,
healing, or other benefits both physical and mental, including, but not
Page 2 of 15 Pages
limited to, deep tissue and pre and post sports massage, manual lymph
drainage therapeutic technique and myofascial release.
B. “Massage establishment” means an establishment having a
fixed place of business where massage or similar procedures are performed.
C. “Massage professional” means any person, other than a
medical practitioner licensed by the state of California, who administers to
another person for a fee, profit or other compensation, massage, baths or
other similar procedures.
D. “Person” means any individual, partnership, corporation or
association of any nature whatsoever.
E. “CAMTC” means California Massage Therapy Council.
F. “Employee,” for the purpose of this chapter, shall include
independent contractors.
G. “Manager” means the person(s) designated by the operator of
the massage establishment to act as the representative and agent of the
operator in managing day-to-day operations with the same liabilities and
responsibilities.
H. “Off-premises massage” means the performing of massage for
a fee, profit or other compensation at a location other than the massage
establishment, including, and limited to, the following:
1. “Off-premises public” when the client remains fully clothed and
limited to modalities that do not require the removal of clothing, including,
but not limited to, chair massage, reflexology, sports massage, and
acupressure, shiatsu and Thai massage. Off-premises public is limited to
areas open to the public, but limited to sidewalks, sports complexes,
convention centers, public events, and business lobbies or common areas
open to the public or other employees;
2. “Off-premises private” when the client may or may not remain
fully clothed and shall not be performed unless authorized in writing by a
physician, surgeon, chiropractor or osteopath duly licensed to practice in
the state of California.
I. “Owner” means all persons who have an ownership interest in
the massage establishment and are responsible for its day-to-day
operations. The owner also is an individual(s) whose name(s) appears on
the City of Bakersfield business license.
Page 3 of 15 Pages
J. “Reflexology” is the application of specific pressures to reflex
points in the hands and feet. It is a clothed session with only the removal of
shoes and socks allowed.
5.32.020 CAMTC—Certificate required.
Unless provided for below, every massage professional must be
certified through the CAMTC.
A. Effective immediately the City will no longer issue massage
practitioner permits.
B. For those massage professionals who currently have City-issued
massage practitioner permits, those permits are not subject to renewal by
the City.
5.32.030 Massage establishment—Permit required.
Every person conducting, managing, owning, or operating a
massage establishment in the city, except as exempted in this chapter, shall
first obtain a permit under this chapter. Said permit shall be numbered and
must be displayed in a prominent place on the premises in which the
business is conducted.
5.32.040 Application for establishment permit, fee.
A. Every person desiring an establishment permit under this
chapter shall complete and submit to the Bakersfield Police Department a
written application in a form approved by the chief of police along with the
required fee.
B. Any establishment permit issued under this chapter shall be
valid for two years from the date of issuance unless revoked or suspended.
Existing establishment permits shall continue in effect until the anniversary
date of issuance of the existing permit at which date a renewal shall be
required in accordance with this section.
5.32.045 Renewal.
To renew the permit under this chapter, the permit holder must fill out
a new application and pay the required fee at least ninety days before the
permit expires.
Page 4 of 15 Pages
5.32.050 Establishment permit—Investigation, approval or denial.
A. The chief of police, upon receipt of a complete application for
a massage establishment permit or a renewal of such permit, shall conduct
an appropriate investigation to determine whether the permit shall be
issued in accordance with the procedures of this chapter.
B. The chief of police shall have ninety days to investigate the
application and the background of the applicant, including, but not limited
to, any past criminal convictions as provided by the Justice Department or
other legally authorized agency.
C. After investigation, the chief of police shall approve or
conditionally approve issuance or renewal of the permit if he or she finds:
1. A completed written application form has been filed;
2. The required application fee has been paid;
3. The applicant has fully cooperated in the investigation of his or
her application;
4. The applicant has not knowingly made any false, misleading or
fraudulent statements in the application;
5. The applicant is operating the establishment in a building that
complies with all of the health, zoning, fire, building and safety requirements
and standards of the laws of the state of California and the city;
6. The applicant, his, her or its employees, agents, partners, or
officers, directors or shareholders of the corporation holding more than five
percent of the stock, if the applicant is a corporation, or any of the partners,
including limited partners, if the applicant is a partnership, has not been
convicted in a court of competent jurisdiction of an offense involving
conduct which requires registration under California Penal Code Section
290, or of conduct violating Penal Code Sections 220, 261, 264.1, 266e, 266h,
266i, 314, 315, 316, 318, 647(a), and 647(b) or convicted of an attempt to
commit any of the above-mentioned offenses or convicted in any state of
any offense which, if committed or attempted in this state, or conspiracy to
commit any of the above offenses, would have been punishable as one or
more of the above-mentioned offenses, or any crime involving dishonesty,
fraud, deceit, or moral turpitude;
7. The applicant, his, her or its employees, agents, partners, or
officers, directors, or shareholders of the corporation holding more than five
percent of the stock, if the applicant is a corporation, or any of the partners,
Page 5 of 15 Pages
including limited partners, if the applicant is a partnership, has not been
convicted, within the past five years, in a court of competent jurisdiction of
any offense involving the controlled substances designated in Sections
11054, 11055, 11056, 11057 or 11058 of the Health and Safety Code or
violation in any other state of an offense which, if committed in this state,
would have been punishable as one or more of the above-mentioned
offenses;
8. The applicant, his, her or its employees, agents, partners, or
officers, directors, or shareholders of the corporation holding more than five
percent of the stock, if the applicant is a corporation, or any of the partners,
including limited partners, if the applicant is a partnership, has not been
convicted in a court of competent jurisdiction of an offense involving the
maintenance of a nuisance in connection with the same or similar business
operation;
9. The applicant has not had a permit or permit for a similar type
establishment revoked by the city or any other jurisdiction within the past
three years;
10. The applicant has shown proof of liability insurance as required
by this chapter;
11. The applicant is not delinquent in payment to the city of taxes,
fees, refuse, water, sewer or other charges, fines, or penalties assessed
against or imposed upon the applicant.
D. The chief of police is authorized to issue a temporary permit if
relevant Department of Justice state summary criminal history information is
not received within the ninety-day investigation. A final decision granting or
denying a permit shall be made after receipt of such summary criminal
history information. If the permit is granted, its effective date shall be the
date of issuance of the temporary permit. Temporary permits shall be issued
for a ninety-day period. The chief of police may extend such temporary
permit should the relevant Department of Justice information not yet be
available.
E. Upon review of all documentation provided, the Chief of Police
shall issue the massage business a City massage establishment permit,
which shall be valid for two (2) years from the date of issuance.
F. The chief of police may deny or refuse to renew an
establishment permit if a massage establishment permit was revoked within
the last year at that particular location.
Page 6 of 15 Pages
G. The chief of police shall provide written notice to the applicant
of the decision and the grounds therefor as soon as possible after arriving at
the decision. If denied, an applicant may reapply if he or she can provide
evidence that the ground or grounds for denial of the applicant no longer
exist; provided, however, that no such reapplication may be made sooner
than one year after the original application. All permits issued pursuant to
the provisions of this chapter shall be personal to the applicant and
nontransferable.
5.32.060 Exemptions.
The provisions of this chapter shall not apply to the following classes
of persons while engaged in the performance of the duties of their
respective professions:
A. Physicians, surgeons, chiropractors, osteopaths, podiatrists,
acupuncturists or physical therapists duly licensed to practice in the state of
California;
B. Registered nurses or state licensed vocational nurses;
C. Hospitals, nursing homes, sanitariums or other health care
facilities duly licensed by the state of California;
D. Barbers, beauticians and cosmetologists who are duly licensed
under the laws of the state of California while engaging in practices within
the scope of their licenses, limited solely to the massaging of the neck, face,
scalp, feet up to the ankle, or hands up to the wrist of the client. This
includes manicurists, nail technicians and estheticians licensed by the state
of California as required by the Barbering and Cosmetology Act;
E. Accredited high schools, junior colleges and colleges or
universities where coaches and trainers are acting within the scope of their
employment;
F. Trainers of any amateur, semiprofessional or professional
athlete or athletic team while engaging in their training responsibilities for
and with athletes;
G. Holistic health practitioners who are non-medical health care
therapists and use a massage specialty and therapeutic approach in
caring for clients and who present to the chief of police proof of
satisfactory completion of one thousand hours of instruction in such
specialty or therapeutic approach at a school with a state approved
curriculum and proof of membership in a state or nationally chartered
organization devoted to the specialty or therapeutic approach are exempt.
Page 7 of 15 Pages
The practice of such health care therapists may include other services such
as nutritional assistance or counseling as long as all activities are directed
toward health care.
5.32.070 Permit denial, revocation, non-renewal.
A. The chief of police may deny, revoke or refuse to renew any
permit granted under this chapter on the grounds that the applicant or
permit holder has failed to comply with the permit conditions or other
requirements of this chapter.
B. The chief of police may deny, revoke, or refuse to renew any
permit if any of the following are found:
1. The permit holder does not possess the qualifications for the
permit as required by this chapter;
2. The permit holder has been convicted of any violation of any
provision of this chapter;
3. The permit holder has engaged in conduct or operated a
massage establishment or is engaged in conduct as a massage
professional in a manner which violates this chapter, any conditions of the
permit, or any of the laws which would have been grounds for denial of the
permit;
4. There is fraud, material misrepresentation, false statement, or
omission of a material fact in any application for a permit or in any
supplemental material;
5. An activity authorized under the permit has been conducted in
an unlawful manner or in such a manner as to constitute a menace to the
health, safety, or general welfare of the public;
6. Upon a recommendation from the city officials which states
that such establishment is being managed, conducted or maintained
without regard for public safety or public health.
7. For purposes of this section, permit holder, in the case of a
massage establishment, shall include the managing responsible officer or
managing employee.
C. When the chief of police concludes grounds for denial,
revocation or refusal to renew a license exists, the chief of police shall serve
the applicant or permit holder, either personally or by certified mail
addressed to the business or residence address of the applicant or permit
Page 8 of 15 Pages
holder, with a notice of denial, or revoke or refuse to renew the permit. This
notice shall state the reasons for the proposed action, the effective date of
the decision, that the applicant or permit holder has the right to appeal the
decision to the city manager, and that the decision will be final if no
appeal is filed within the time permitted.
5.32.080 Regulations.
A. A recognizable and readable sign shall be posted at the main
entrance identifying the massage professional/establishment; provided,
however, that all signs shall comply with the sign requirements of the city.
B. Lighting shall be provided as required by the Building Code,
adopted in Chapter 15.05; in addition, at least one artificial light of not less
than a constant forty watts (with no dimmer switches) shall be provided in
each enclosed room where massage services are being performed.
C. Ventilation shall be provided as required by the Building Code,
adopted in Chapter 15.05.
D. The massage establishment premises and facilities shall meet
and be maintained in a condition to comply with all applicable code
requirements of the city, including, but not limited to, those related to the
safety of structures, adequacy of the plumbing, heating, waterproofing of
rooms in which showers, water or steam baths are used, and the health and
cleanliness of the facility.
E. Massage establishments and massage professionals shall at all
times have an adequate supply of clean sanitary towels, coverings and
linens. Towels, non-disposable coverings, and linens shall not be used on
more than one client, unless they have first been laundered and disinfected.
Disposable towels and disposable coverings shall not be used on more than
one client. Soiled linens and paper towels shall be deposited in separate
receptacles.
F. In the massage establishment, wet and dry heat rooms, steam
or vapor rooms or cabinets, toilet rooms, showers and bathrooms, tanning
booths, whirlpool baths, and pools shall be thoroughly cleaned and
disinfected as needed, and at least once each day when the premises are
open, with a disinfectant. Bathtubs shall be thoroughly cleaned with a
disinfectant after each use. All walls, ceilings, floors and other physical
facilities for the establishment shall be in good repair and maintained in a
clean and sanitary condition.
G. All equipment used in the massage establishment shall be
maintained in a clean and sanitary condition. Instruments utilized in
Page 9 of 15 Pages
performing massage techniques shall not be used on more than one client
unless they have been sterilized, using standard sterilization methods.
H. Clients of the massage establishment shall be furnished with a
dressing room. Dressing rooms will be used only by clients of the same sex at
the same time. Dressing rooms need not be separate from the room in
which the massage is being performed.
I. Toilet facilities shall be provided in convenient locations within
the massage establishment and shall consist of at least one unisex toilet
with lavatories or wash basins provided with soap and both hot and cold
running water either in the toilet room or vestibule.
J. A minimum of one washbasin for employees shall be provided
at all times. The basin shall be located within or as close as practicable to
the area devoted to performing of massage services. Soap and sanitary
towels shall also be provided at each basin.
K. All massage establishments shall be operated in compliance
with state and local health laws and regulations.
L. All employees of the massage establishment, and all persons
performing massages shall be eighteen years of age or older.
M. No massage establishment shall operate at any time unless
there is displayed in a location clearly visible to the public a valid permit to
so operate issued pursuant to the provisions of this chapter.
N. It shall be the responsibility of the holder of the permit for the
massage establishment to insure that each massage professional operating
at the establishment shall have first obtained a valid permit pursuant to this
chapter.
O. The permit holder for the massage establishment shall maintain
a current file of all persons operating at the establishment. The file shall
contain true names and aliases used by such employees, age, birth date,
color of hair and eyes, home address, phone numbers, social security
number and the date of employment and termination. The manager of
the massage establishment shall have access to the records for inspection
by the chief of police of designee during business hours.
P. Every person holding a permit pursuant to this chapter shall
keep a record of the date and hour of each treatment, the name and
address of the patron and the name of the massage professional
administering such treatment. The record shall be open to inspection by the
Page 10 of 15 Pages
chief of police or designee during business hours. Such records shall be
maintained for a period of two years.
Q. No person holding a permit pursuant to this chapter shall permit
communication devices to be installed or used in any manner on the
premises of the massage establishment so as to interfere with or hinder
inspection by a law enforcement officer.
R. A massage shall be provided or given only between the hours
of seven a.m. and ten p.m. All clients shall exit the premises by ten p.m.
and no massage business shall allow any person to reside within the
premises or in attached structures owned, leased or controlled by the
massage business.
S. Either a manager or person holding a permit for a massage
establishment shall, during business hours, be present, be responsible for,
and provide, that the premises be readily accessible and open for
inspection by law enforcement officers or other government employees
who are charged with enforcement of health and safety or other laws of
the city or state.
T. The departments of planning, building, fire and health shall,
from time to time, make an inspection of each massage establishment in
the city for the purpose of determining that the provisions of this chapter
are met.
U. No massage establishment shall operate under any name not
specified in the permit.
V. Except as otherwise provided in this chapter, massage shall be
performed only at a massage establishment for which a permit has been
issued and is valid.
W. Massage professionals shall be fully clothed at all times, unless
providing a water-based massage modality approved by CAMTC, in which
case they shall not dress in a manner that exposes one's breasts, buttocks,
or genitals, or otherwise dress in a manner that constitutes a violation of
Penal Code section 314. Otherwise, clothing shall be of a fully opaque,
non-transparent material and provide the complete covering from mid-
thigh to three inches below the collarbone. Massage professionals shall
have visible in the work station at all times a photo-identification name tag
issued by the chief of police which readily displays a photograph of the
massage professional measuring no smaller than two inches by two inches,
the name of the massage professional, the name of the massage
establishment in which the massage professional is employed, and the date
of expiration of the massage professional’s permit.
Page 11 of 15 Pages
X. An original CAMTC certificate for each massage professionals
employed in the business shall be displayed in the reception area or similar
open public place on the premises. Likewise, a CAMTC certificate shall also
be visibly displayed in the work station or worn by and clearly visible on the
massage professional’s person during working hours, and at all times when
the massage professional is inside a massage business or providing outcall
massage.
Y. No person shall enter, be, or remain in any part of a massage
establishment while in the possession of, consuming, or using any alcohol or
drug except a prescription drug. The responsible owner, operator,
managing employee, manager or permit holder shall not permit any such
person to enter or remain upon such premises.
Z. All exterior doors shall remain unlocked from the inside during
business hours unless otherwise allowed by law. A person operating a
massage establishment shall be responsible for and provide that said
premises shall, during business hours, be readily accessible and open for
inspection by law enforcement officers for the purpose of locating
evidence that would substantiate a violation of the provisions of this
chapter.
5.32.090 Prohibited conduct.
A. No owner, manager, operator, responsible managing
employee or permit holder shall allow, offer or perform any service other
than those permitted under this chapter.
B. No owner, manager, operator or employee of a massage
establishment, while on the premises of a massage establishment and/or
during the course of performing massage, shall:
l. Expose the sexual or genital part of the permit holder or
employee; or
2. Expose the sexual or genital part of any other person; or
3. Intentionally touch or make physical contact with the genitals,
anus and/or perineum of another person. Sexual and genital part shall
include the genitals, anus and/or perineum of any person and the breasts
of any female.
C. No owner, manager, operator or employee of a massage
establishment shall place, publish or distribute or cause to be placed,
published or distributed any advertising matter that depicts any portion of
the human body that would reasonably suggest to prospective customers
Page 12 of 15 Pages
that any service is available which is prohibited under this chapter, nor shall
any massage establishment employ language in any advertising text or
business name that would reasonably suggest to a prospective client that
any service is available that is prohibited under this chapter.
D. A massage professional shall not violate the provisions of
Section 647(a) and (b) of the California Penal Code, or any other state law
involving a crime of moral turpitude, and such practices shall not be
allowed or permitted by the massage establishment permit holder.
E. A massage professional shall not massage a client of one sex
within the view of a client of the opposite sex, and such practices shall not
be allowed or permitted by the massage establishment permit holder.
Parents, spouse, guardians, translators or caregivers are excluded from this
requirement.
F. No owner, manager, operator, responsible managing
employee, or permit holder shall permit, and no massage professional shall
violate any of the regulations contained in this chapter.
G. No manager or owner of a massage establishment shall allow or
permit a person to administer massage for such establishment unless the
professional possesses a valid CAMTC permit issued under the provisions of
this chapter. It shall be the responsibility of the massage establishment
permit holder to ensure that each person operating as a massage
professional shall first have obtained a valid license under this chapter.
H. Proof of knowledge of any violation of this section shall not be
required to be shown where a massage establishment permit is suspended
or revoked.
5.32.100 Violation and penalty.
A. Any massage establishment operated, conducted or
maintained contrary to the provisions of this chapter shall be unlawful and
a public nuisance, and the city attorney may enforce such violations as
criminal, civil and/or administrative utilizing administrative remedies.
B. Each person shall be charged with a separate offense for each
and every day during which any violation of any provision of this chapter is
committed, continued or permitted by such person and shall, upon
conviction, be punished accordingly.
Page 13 of 15 Pages
5.32.110 Appeal.
A. If the chief of police denies, revokes or does not renew the
massage establishment permit, the decision may be appealed by the
applicant to the city manager, or designee, through the following
procedure:
1. No later than fifteen calendar days after mailing of the notice
of denial, the applicant shall file with the city clerk a written request for an
appeal hearing, which states the specific grounds for appeal.
2. As soon as practicable after receiving the appeal, the city
manager, or his or her designee, shall set a date to hear the appeal, which
date shall be within a reasonable time from the date the appeal was filed.
The city manager, or designee, shall give the appellant written notice of the
time and place of the hearing at least fifteen days prior to the date of the
hearing, either by causing a copy of the notice to be delivered to the
appellant personally or by certified mail addressed to the appellant at the
address shown on the appeal. Continuances of the hearing may be
granted by the city manager, or designee, on request of the appellant for
good cause shown, or on the city manager’s own motion. The hearing shall
be informal. At the hearing, the city manager, or designee, shall hear the
appellant and any witnesses, as well as any information to be provided by
the chief of police, or designee. Upon conclusion of the hearing, the city
manager, or designee, shall render a decision. The decision of the city
manager, or designee, shall be final.
3. Unless otherwise specifically prohibited by law, the burden of
proof is on the applicant or permit holder in any hearing or other matter
under this chapter.
5.32.120 Severability.
If any section, subsection, sentence, clause or phrase of this chapter
is for any reason held to be invalid or unconstitutional by a decision of any
court of competent jurisdiction, such decision shall not affect the validity of
the remaining portions of this chapter. The city council hereby declares that
it would have passed the ordinance codified in this chapter, and each and
every section, subsection, sentence, clause or phrase not declared invalid
or unconstitutional without regard to whether any portion of this chapter
would be subsequently declared invalid or unconstitutional.
5.32.130 Practitioner Permit Exemption Option.
A. The City recognizes that some massage professionals currently
practicing in Bakersfield may not meet the current requirements set forth by
Page 14 of 15 Pages
the CAMTC due to changes concerning hours of schooling, even though
the person has been in practice for a significant period. The City will allow
such persons to bypass the CAMTC requirement of section 5.32.020 and
maintain their City-issued massage practitioner permit if they show all of the
following:
1. Must apply for this exemption with the Bakersfield Police
Department within 30 days from the effective date of this
ordinance; and
2. Must show that he or she has had a massage practitioner
permit for the past 10 consecutive years (4/2008 to 4/2018)
with no time lapse; and
3. Must show to the satisfaction of the police department that
he or she has not been issued any warnings or citations
regarding issues with their massage practitioner permit or
with their establishment permit.
B. Persons that are granted an exemption from the CAMTC
certification requirement will still be required to meet all other terms of this
ordinance, including but not limited to a background check, as well as
following the same process if their massage practitioner permit is denied,
revoked, or not renewed. This exemption must be renewed annually with
the Bakersfield Police Department by filing the renewal prior to the
expiration date.
SECTION 2.
This Ordinance shall be posted in accordance with the provisions of
the Bakersfield Municipal Code and shall become effective thirty (30) days
from and after the date of its passage.
---------o0o----------
Page 15 of 15 Pages
I HEREBY CERTIFY that the foregoing Ordinance was passed and
adopted by the Council of the City of Bakersfield at a regular meeting
thereof held on __________________________, by the following vote:
AYES: COUNCILMEMBER: RIVERA, GONZALES, WEIR, SMITH, FREEMAN, SULLIVAN, PARLIER
NOES: COUNCILMEMBER: _______________________________________________________________
ABSTAIN: COUNCILMEMBER: _______________________________________________________________
ABSENT: COUNCILMEMBER: _______________________________________________________________
__________________________________________
CHRISTOPHER GERRY
ACTING CITY CLERK and Ex Officio Clerk of
the Council of the City of Bakersfield
APPROVED:
By:_________________________________
KAREN GOH
Mayor
APPROVED AS TO FORM:
VIRGINIA GENNARO
City Attorney
By:________________________________
VIRIDIANA GALLARDO-KING
Associate City Attorney
VGK:lsc
S:\COUNCIL\Ords\17-18\5.32Massage.docx
Documents
Presented At The
Legislative & Litigation
Committee
March 19, 2018
Meeting
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