Loading...
HomeMy WebLinkAboutORD NO 4123 4123 ORDINANCE NO. ORDINANCE AMENDING BAKERSFIELD MUNICIPAL CODE SECTION 5.32.010 RELATING TO MASSAGE/BODYWORK ESTABLISHMENTS. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Section 5.32.010 of the Bakersfield Municipal Code is hereby amended to read as follows: 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/bodywork" 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 limited to, deep tissue and pre and post sports massage, manual lymph drainage therapeutic technique and myofascial release. B. "Massage/bodywork establishment" means an establishment having a fixed place of business where any person engages in, conducts, carries on, or permits to be engaged in, conducted, or carried on for a fee, profit or other compensation, massage/bodywork, baths or other similar procedures. C. "Massage/bodywork practitioner" 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/bodywork, baths or other similar procedures. D. "Person" means any individual, partnership, corporation or association of any nature whatsoever. E. "Employee" For the purpose of this chapter shall include independent contractors. F. "Manager" means the person(s) designated by the operator of the massage/bodywork establishment to act as the representative and agent of the operator in managing day4o-day operations with the same liabilities and responsibilities. Evidence of management includes, but is not limited to, evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules or purchase supplies. A manager may also be an owner. A manager must meet the standards and qualifications of section 5.32.060 to qualify as a manager with the exception of subsections R, S, and U thereof. A manager may also be a practitioner, provided such person has been issued a practitioner permit. Page 1 of 20 ' G. "Off-premises massage/bodywork" means the performing of massage/bodywork for a fee, profit or other compensation at a location other than the massage/bodywork 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 limited by section 5.32.130. H. "Operator/owner" means all persons who have an ownership interest in the massage/bodywork establishment and are responsible for its day-to-day operations. The operator/owner also is an individual(s) whose name(s) appears on the City of Bakersfield business license. I. "Recognized school of massage" means any school or institution of learning which has for its purpose the teaching of the theory, practice, method and performance, ethics, anatomical and physiological knowledge, and work of massage, which school or institution complies with California Education Code sections 94310-94311, and which requires a resident course of study before the student shall be furnished with a diploma or certificate of graduation. Schools offering a correspondence course not requiring actual attendance shall not be deemed a recognized school. Any out-of-state school must meet the requirements of California Education Code sections 94310 and 94311 and must be licensed by the state or subdivision thereof within which it functions if such licensing is required. J. "Qualifying exam" means a national certification examination which has been recognized by objective standards to fairly evaluate professional level, skill, safety and competence as determined by The National Commission for Certifying Agencies. K. "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. A practitioner permit is required for an individual to perform reflexology. 5.32.020 Permit required. Except as provided in this chapter, it is unlawful for any person to keep, maintain or operate a massage/bodywork establishment, or to perform massage/bodywork for a fee, profit or other compensation, in the city, in violation of this chapter or without having first procured and maintained a valid permit from the chief of police or his designee. Except as exempted in this chapter, each massage/bodywork practitioner must hold a valid permit. No more than one massage/bodywork establishment permit shall be required or issued for any establishment at a single location. S:/COUNClL\OrdsWiassageOrd041803 .doc - April 18, 2003 Page2of20 5.32.030 Massage/Bodywork Establishment: Permit Required Every person conducting, managing, owning, or operating a massage/bodywork 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. In the event a person applies to operate a massage/bodywork establishment out of that person's permanent residence, for the sole purpose of performing off-premises massage/bodywork, such person shall first obtain a home occupation permit in accordance with the zoning provisions of this code. Such home occupation permit shall not substitute for, and shall be in addition to, the requirement to obtain an Establishment Permit pursuant to the Chapter. Any individual who is both a massage/bodywork practitioner and the owner/operator of a massage/bodywork establishment may obtain a single permit as owner/practitioner if he or she satisfies the permit requirements for both establishment and practitioner. 5.32.040 Massage/Bodywork Practitioner: Permit Required Every person employed as a massage/bodywork practitioner or self-employed providing massage/bodywork services for compensation at a permitted massage/bodywork establishment and/or off-premises massage/bodywork for compensation in the city shall obtain a permit under this chapter. In order to qualify for a massage/bodywork practitioner permit provided for hereunder, each massage/bodywork practitioner must satisfy one of the following criteria: A. If self-employed or employed at a permitted massage/bodywork establishment, have received a diploma or certificate of completion in a course of study in massage/bodywork at a recognized school of massage or institution approved pursuant to the California Education Code which shows proof of satisfying completion of at least two hundred (200) classroom hours of a non-repetitive curriculum in anatomy, physiology, hygiene, sanitation, massage therapy, theory, practice and ethics of massage practice; however, said two hundred (200) hours shall include no more than one hundred (100) internship hours obtained by a student from a school when the school collects a fee from the public for a massage given by the student, and the school then credits the student with "internship hours;" or B. If providing off-premises massage/bodywork for compensation, have received a diploma or certificate of completion in a course of study in massage/bodywork at a recognized school of massage or institution approved pursuant to the California Education Code which shows proof of satisfying completion of at least five hundred (500) classroom hours of a non-repetitive curriculum in anatomy, physiology, hygiene, sanitation, massage therapy, theory, practice and ethics of massage practice; however, said five hundred (500) hours shall include no more than two hundred and fifty (250) internship hours obtained by a student from a school when the school collects a fee from the public for a massage given by the student, and the school then credits the student with "internship hours;" or S:\COUNClL\Ords~MassageOrd041803 .doc April 18, 2003 Page 3 of 20 C. Have received a certificate of completion in a course of study at an institution outside California which, in the opinion of the Chief of Police, meets or exceeds the criteria for approval for such programs in California; or D. Have successfully passed an independently prepared and administered national certification examination which is recognized by objective standards to fairly evaluate professional levels of skill, safety and competence, as determined by the National Commission for Certifying Agencies. 5.32.050 Application for Permit: Fees. A fee shall be required for every permit application filed under this chapter. The fee must be received by the Finance Department before any application is processed. The city council shall set the amounts of said fees by resolution and may from time to time by resolution adjust the amounts of said fees. Any fee pursuant to this section shall be in addition to and not in lieu of any business license tax imposed pursuant to the provisions of the Bakersfield Municipal Code. 5.32,060 Application for Establishment and Practitioner Permit. Every person desiring an establishment permit or practitioner's 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. The application shall be completed under penalty of perjury under the laws of this state and shall require the following information as relevant to the specific type of permit: A. The name of the applicant and a complete statement regarding any and all true and fictitious names used by the applicant within the five (5) years immediately preceding the application. Ail applications for permits for massage/bodywork establishments or schools of massage shall be referred to the Director of Development Services and the Fire Chief who shall make written recommendations to the Chief of Police concerning compliance with the laws and ordinances that they administer and enforce; B. The residence address, business address, and residence and business telephone numbers of the applicant. In addition, an applicant for a practitioner permit shall contain the name, address and telephone number of the establishment at which the applicant will be employed; C. The previous addresses of applicant, if any, for a period of five (5) years immediately prior to the date of the application and the dates of residence at each address; D. Acceptable written proof that the applicant is at least eighteen (18) years of age; E. The names, residence and business address and telephone numbers of any co-partners, excluding limited partners of the applicant; F. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in the articles of incorporation along with the names and residence addresses of each of the officers, directors and each shareholder owning ten (10) percent or more of the corporation, if one or more of the owners is a corporation, the provisions of this section pertaining to a corporate applicant apply; G. The names, residence and business address and telephone numbers of the managers and persons to be in charge; H. The name, residence and business addresses and telephone numbers of the owner of the premises, if any, in which the establishment is to be located and the written consent of said owner to operation of the establishment or a copy of the lease for the premises executed by the owner evidencing such consent; I. The applicant's height, weight, color of eyes and hair and date and place of birth, unless applicant is a partnership or corporation, in which case this information shall be supplied for the person or persons authorized to execute the application; J. The nature, name and place of applicant's business or employment during the five (5) years immediately preceding the date of filing of the application; K. A description of the exact nature of the establishment to be operated and the name under which it will operate; L. The address and particular room or rooms and square footage of the premises in which the massage/bodywork activities are to occur; M. A diagram drawn to scale and dimensions showing the number of rooms for said establishment, including a sketch of the interior floor plan thereof, and a list of the equipment used thereon; N. Whether or not the applicant or any partner, co-partner, manager, or operator of the establishment being applied for has had a permit for the same or any similar establishment suspended or revoked anywhere, and if so, the circumstances of such suspension or revocation; O. A statement that the practitioner applicant or any partner, co-partner, manager, employee or operator of the establishment applicant has never been convicted of violations of Penal Code sections 220, 261,264.1,266e, 266h, 314, 315, 316, 318, 647(a) or (b), or any offense involving possession of the substances identified in Health and Safety Codes sections 11054, 11055, 11056, 11057 or 11058, or convicted in any state of any offense which if committed 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 of any felony, or, if such crime has been committed by such person, a complete statement of the nature of such crime and the place and date of conviction; P. A statement that the practitioner applicant or any partner, co-partner, manager, employee or operator of the establishment applicant is not required to register under Penal Code section 290, or if any such person is so required, the circumstances leading to this requirement; Q. Sets of fingerprints of the applicant, the person or persons in charge of the establishment and all massage/bodywork practitioners for the establishment provided to the Bakersfield Police Department; R. Proof of massage liability insurance coverage, including, at a minimum, professional liability, products liability and general liability, in the sum of not less than five hundred thousand dollars ($500,000.00) per each massage/bodywork practitioner employed b.y the establishment up to a maximum of one million dollars ($1,000,000.00); S:\COUNCIL\Ords\MassageOrd041803 .doc - April I8, 2003 Page5of20 S. Proof of matriculation from a recognized school of massage, as defined herein. If the applicant is a corporation or partnership, then this proof must be supplied for a member of the corporation or partnership who will actively participate in the management of the establishment. The practitioner must submit an original diploma, certificate of graduation, or other written proof, including certified transcripts, acceptable to the Chief of Police, that establish compliance with Bakersfield Municipal Code section 5.32.040. All existing permit holders who wish to perform off-premises massage shall have an additional two (2) years from the effective date of the ordinance codified in this chapter to provide proof of completion of the required five hundred (500) classroom hours; T. The practitioner applicant must furnish a certificate from a physician, licensed to practice medicine in the State of California, showing that the applicant has been tested within the previous thirty (30) days and has been found to be free of tuberculosis; U. Proof that a valid business tax certificate has been issued for the establishment and proof the application fee has been paid; V. Applicants for permits under this chapter who intend to teach massage/bodywork or open a massage/bodywork school shall, in addition to all other requirements of this chapter, submit a valid license from the State of California authorizing such activity; W. Each application shall be submitted along with two (2) portrait photographs of the practitioner applicant, or the manager of an establishment applicant, at least two inches by two inches in size; and X. Such other information as the Chief of Police shall deem necessary. Y. The Chief of Police is hereby authorized to waive the requirements of subsections L and M of this section when the applicant has obtained a home occupation permit in accordance with the zoning provisions of this code and section 5.32.030. 5.32.070 Establishment and Practitioner Permit: Notice of Change. A. Whenever any change occurs relating to the information specified in Section 5.32.060, including changes in the physical layout of the establishment, and changes in employees or operations, the applicant shall report said change and provide all information which would have been required under Section 5.32.060 prior to its taking affect. B. No massage/bodywork establishment permit may be sold, transferred or assigned by a permit holder, or by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be null and void. However, if the permit holder is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of the permit. In such case, the permit, upon notification to the Chief of Police, shall be placed in the name of the surviving partners. A massage/bodywork establishment permit issued to a corporation shall be deemed terminated and void when either any outstanding stock of the corporation is sold, transferred or assigned after the issuance of a permit, or any stock authorized but not issued at the time of the granting of the permit is thereafter issued or sold, transferr~l ~ Page 6 of 20 ~ -, S:\COUNCIL/OrdsWiassageOnl041803 doc ,~ April 18, 2003 ?, : assigned. No massage/bodywork practitioner's permit may be sold, transferred or assigned by a permit holder, or any operation of law, to any other person or persons. C. The sale or transfer of any interest in a massage/bodywork establishment shall be reported to the Chief of Police at least ten (10) days prior to such sale or transfer. The person obtaining such interest shall file a new permit application and an investigation shall be conducted pursuant to the provisions of this chapter. D. Upon a request to change the location of a massage/bodywork establishment, an application to the Chief of Police shall be made and such application shall be granted, provided all applicable provisions of this code have been complied with by the applicant. 5.32.080 Establishment Permit: Investigation, Approval or Denial A. The Chief of Police, upon receipt of a complete application for a massage/bodywork 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 sixty (60) 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/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 of Bakersfield; (6) The applicant, his/her or its employees, agents, partners, or officers, directors, or shareholders of the corporation holding more than five (5) 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 (5) 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, 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 (5) 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 (3) 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 Bakersfield of taxes, fees, refuse, water, sewer, or other charges, fines, or penalties assessed against or imposed upon the applicant arising out of any other business activity owned or operated by the applicant and licensed by the City. D. The Chief of Police shall provide written notice to the applicant of the decision and the grounds therefore 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 ninety (90) days after the original application. All permits issued pursuant to the provisions of this chapter shall be personal to the applicant and nontransferable. E. 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 sixty (60) 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 (90) day period. The Chief of Police may extend such temporary permit should the relevant Department of Justice information not yet be available. 5.32.090 Practitioner Permit: Investigation, Approval or Denial. A. The Chief of Police shall have sixty (60) 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. Upon completion of the investigation, the Chief of Police shall grant the permit if, in addition to the finding that the applicant will work in an establishment which complies with this chapter, the requirements of this section have been met. B. After investigation, the Chief of Police shall approve or conditionally approve issuance or renewal of the permit if he/she finds: (1) A completed written application form has been completed; (2) The required application fee has been paid; S:\COUNCIL\OrdsLMassageOnl041803 doc April 18, 2003 PageSof20 (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 has not had a permit or permit for a similar type business revoked by the city or any other jurisdiction within the past three (3) years; (6) The applicant has shown proof of malpractice insurance; (7) The applicant has not been convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under Penal Code section 290, or of conduct violating Penal Code sections 226i, 266, 314, 315, 316, 318, 647(a), 647(b) and 647(h), 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; (8) The applicant has not been convicted within the past five (5) 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; (9) The applicant 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; (10) If the applicant is to be employed in a massage/bodywork establishment permitted in accordance with this chapter, the applicant has received a degree or certificate of completion in a course of study in massage/bodywork at a school or institution approved pursuant to the California Education Code with a state approved massage/bodywork curriculum of not less than two hundred (200) hours; or has received a certificate of completion in a course of study at an institution outside California which, in the opinion of the Chief of Police, meets or exceeds the criteria for approval for such programs in California; or has successfully passed an independently prepared and administered national certification examination which is recognized by objective standards to fairly evaluate professional levels of skill, safety and competence, as determined by the National Commission for Certifying Agencies and has produced an acceptable diploma or certificate of graduation or document establishing the passing of a national certification examination. (11) If the applicant is seeking a permit to perform on-site and/or off- premises massage/bodywork activities, the applicant has received a degree or certificate of completion in a course of study in massage/bodywork at a school or institution approved pursuant to the California Education Code with a state approved massage/bodywork curriculum of not less than five hundred (500) hours; or has received a certificate of completion in a course of study at an institution outside California which, in the opinion of the Chief of Police, meets or exceeds the criteria for approval for such programs in California; or has successfully passed an independently prepared and administered national certification examination which is recognized by objective standards to fairly evaluate professional levels of skill, safety and competence, as determined by the National Commission for Certifying Agencies and has produced an acceptable diploma or certificate of graduation or document establishing the passing of a national certification examination. C. The Chief of Police shall provide written notice to the applicant of the decision and the grounds therefore as soon as possible after arriving at the decision. The decision of the Chief of Police shall be final. If denied, an applicant may reapply if he or she can provide evidence the ground or grounds of denial of the applicant no longer exist, provided however, that no such reapplication may be made sooner than ninety (90) days after the original application. All permits issued pursuant to the provisions of this chapter shall be personal to the applicant and nontransferable. 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 sixty (60) 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 (90) day period. The Chief of Police may extend such temporary permit, should the relevant Department of Justice information not yet be available. 5.32.100 Exemptions from Permits. All individuals who use a massage/bodywork specialty and/or therapeutic approach in caring for clients while under the "control and direction" of any of the exempted classes of individuals listed below must have a valid massage/bodywork practitioner permit and comply with all the requirements for the issuance of a practitioner permit. 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 (1,000) 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 organizatioG Page 10 of 20 S:\COUNCI L/Ords'xMassageOrd041803 .doc - April 18, 2003 devoted to the specialty or therapeutic approach are exempt. 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. 5.32.110 Permit Denial - Appeal. The decision of the Chief of Police to deny a massage/bodywork establishment permit or massage/bodywork practitioner permit may be appealed by the applicant to the City Manager, or his or her designee, through the following procedure: A. No later than fifteen (15) 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. B. 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 no less than seven (7) days nor more than sixty (60) days from the date the appeal was filed. The City Manager, or his or her designee, shall give the appellant written notice of the time and place of the hearing at least fifteen (15) 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 his or her 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 his or her designee, shall hear the appellant and any witnesses, as well as any information to be provided by the Chief of Police, or his or her designee. Upon conclusion of the hearing, the City Manager, or his or her designee, shall render a decision. The decision of the City Manager, or his or her designee, shall be final. C. 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 Off-Premises Massage/Bodywork. No person shall perform or administer massage/bodywork services as off- premises massage/bodywork, as those terms are defined herein, for money or other consideration, without obtaining a massage/bodywork practitioner permit pursuant to the provisions of this chapter. No permitted massage/bodywork practitioner shall perform or administer massage/bodywork services as off-premises massage/bodywork, as defined herein, unless such practitioner is an employee, as defined herein, of a permitted massage/bodywork establishment; provided, however, in the event a massage/bodywork practitioner is performing or administering massage/bodywork services solely as an employee, as defined herein, of, or under contract for, a business which is not a massage/bodywork establishment or under the "control and directJon" of an exempted person listed in this Chapter, such business or exempted person shall not be required to obtain a Massage/bodywork Establishment Permit. S:~COUNCIL\OrdsXMassageOrd041803 .doc - April 18, 2003 Page 11 of 20 5.32.130 Off-Premises Private Prohibition. Off-premises private massage/bodywork shall not be performed unless authorized in writing by a physician, surgeon, chiropractor or osteopath duly licensed to practice in the State of California. 5.32.140 Off-Premises Massage/Bodywork - Time Constraints. Off-premises massage shall only be conducted between the hours of 7:00 a.m. and 10:00 p.m. 5.32.150 Off-Premises Massage/Bodywork - Prohibited Locations. A. Off-premises massage/bodywork shall not be conducted in the following locations: (1) A hotel/motel room or any other similar location used primarily for transitory habitation purposes. (2) The residence of the off-premises massage/bodywork practitioner. (3) Private business offices or other similar locations which are not openly accessible to other employees of the business or the general public, as appropriate. 5.32.160 Regulations. A. A recognizable and readable sign shall be posted at the main entrance identifying the massage/bodywork establishment; provided, however, that all signs shall comply with the sign requirements of the city. B. Lighting shall be provided as required by the Uniform Building Code, adopted in Chapter 15.12; 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/bodywork services are being performed. C. Ventilation shall be provided as required by the Uniform Building Code, adopted in Chapter 15.12. D. The massage/bodywork establishment premises and facilities shall meet and be maintained in a condition to comply with all applicable code requirements of the City of Bakersfield, 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/bodywork establishments and massage/bodywork practitioners shall at all time 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 (1) client, unless they have first been laundered and disinfected. Disposable towels and disposable coverings shall not be used on more than one (1) client. Soiled linens and paper towels shall be deposited in separate receptacles. F. In the massage/bodywork 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 S:\COUNC[ L/Ords\MassageOrd04 ] 803 .doc April 18, 2003 Page 12 of 20 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/bodywork establishment shall be maintained in a clean and sanitary condition. Instruments utilized in performing massage or bodywork techniques shall not be used on more than one (1) client unless they have been sterilized, using standard sterilization methods. H. Clients of the massage/bodywork 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/bodywork establishment and shall consist of at least one (1) 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 (1) wash basin 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/bodywork services. Soap and sanitary towels shall also be provided at each basin. K. All massage/bodywork establishments shall be operated in compliance with state and local health laws and regulations. L. All employees of the massage/bodywork establishment, and all persons performing massage/bodywork shall be eighteen years of age or older. M. No massage/bodywork 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/bodywork establishment to insure that each person employed as a massage/bodywork practitioner shall have first obtained a valid permit pursuant to this chapter. O. The permit holder for the massage/bodywork establishment shall maintain a current file of all persons employed by him or her. 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. 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/bodywork practitioner administering such treatment. The record shall be open to inspection by the Chief of Police or his or her 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/bodywork establishment so as to interfere with or hinder inspection by a law enforcement officer. R. No person shall conduct or operate, or permit to be conducted or operated, a massage/bodywork establishment between the hours of ten p.m. and seven a.m. of the following day. S. Any person holding a permit for a massage/bodywork establishment shall, during business hours, 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 departments shall, from time to time, make an inspection of each massage/bodywork establishment in the city for the purpose of determining that the provisions of this chapter are met. U. No person permitted as a massage/bodywork establishment as provided in this chapter shall operate under any name or conduct the massage/bodywork establishment under any designation not specified in the permit. V. Except as otherwise provided in this chapter, massage/bodywork shall be performed only at a massage/bodywork establishment for which a permit has been issued and is valid. W. Massage/bodywork practitioners shall be fully clothed at all times. Clothing shall be of a fully opaque, non-transparent material and provide the complete covering from mid-thigh to three (3) inches below the collarbone. Massage/bodywork practitioners 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 practitioner measuring no smaller than two (2) inches by two (2) inches, the name of the practitioner, the name of the massage/bodywork establishment in which the practitioner is employed, and the date of expiration of the practitioner's permit. X. No person shall enter, be, or remain in any part of a massage/bodywork 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. Y. All exterior doors shall remain unlocked from the inside during business hours. A person operating a massage/bodywork 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. 5.32.170 Prohibited Conduct. A. No owner, manager, operator, responsible managing employee, or permit holder shall permit, and no massage/bodywork practitioner shall offer or perform, any service other than those permitted under this chapter. B. No permit holder or employee of a massage/bodywork establishment, while on the premises of a massage/bodywork establishment and/or during the course of performing massage/bodywork, shall: (1) Expose the sexual or genital part of the permit holder or employee; or (2) Expose the sexual or genital part of any other person; (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, perineum of any person and the breasts of any female. Pa§e 14 of 20 S:/COUNCI L\Onls~dassageOrd041803 .doc - April 18, 2003 C. No permit holder or employee of a massage/bodywork 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 that any service is available which is prohibited under this chapter nor shall any massage/bodywork 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/bodywork practitioner shall not violate the provisions of Sections 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/bodywork establishment permit holder. E. A massage/bodywork practitioner 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/bodywork 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/bodywork practitioner shall violate any of the regulations contained in this chapter. G. No permit holder, manager, or owner/operator of a massage/bodywork establishment shall allow or permit a person to administer massage/bodywork for such establishment unless the practitioner possesses a valid massage/bodywork practitioner permit issued under the provisions of this chapter. It shall be the responsibility of massage/bodywork establishment permit holder to ensure that each person employed as a practitioner 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/bodywork establishment permit is suspended or revoked. 5.32.180 Permit Renewal. Any permit issued under this chapter shall be valid for two (2) years from the date of issuance unless revoked or suspended. Existing establishment and practitioner 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. Permits may be renewed every two (2) years by filing an application for renewal under penalty of perjury updating information in the original application provided to the Chief of Police. A. A permit holder may apply for a renewal of a permit thirty (30) days prior to the expiration of the permit. Upon the thirty-first day after the expiration of a permit, if an application of renewal has not been received, the permit shall be deemed expired. Any permit issued under this chapter shall be returned to the Chief of Police within forty- eight (48) hours of its expiration. No privilege to provide massage/bodywork shall exist until an application for renewal has been granted. After a permit expires, a new application may be filed. B. To renew a permit under this chapter, the permit holder shall pay the city a nonrefundable fee in an amount set forth by resolution established by the City Council. A copy of the receipt for the non-refundable fee shall accompany the application for renewal. S:\COUNCIL\Ords~VlassageOnl041803 .doc - April 18, 2003 . C. After investigating the application for renewal, the Chief of Police shall renew the permit if the permit holder continues to meet the requirements for the issuance of a permit, and none of the grounds for denial of a permit set forth in this chapter exist. The Chief of Police shall renew the permit within thirty (30) days of such request if the information upon which the original application was granted remains unchanged and no violations of this chapter have been committed. 5.32.190 Continuing Education. At the time of renewal, an applicant shall provide verification that the permit holder has participated successfully in continuing education programs consisting of a minimum of twenty-four (24) hours of related course work in massage/bodywork. Internship hours, as defined herein, shall not satisfy the continuing education requirement. Any qualifying training received by the permit holder and presented as compliance with the continuing education requirement has a three year life only. 5.32.200 Suspension, Revocation and Non-Renewal. A. The Chief of Police may refuse to renew, revoke or suspend 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. If a suspended permit lapses during the suspension period, a new application must be made at the end of the suspension period. B. The Chief of Police may revoke or refuse to renew a massage/bodywork establishment permit if he or she makes any of the findings for denial of a permit under this chapter or upon any subsequent violation of any provision of this chapter within one (1) year following a prior suspension under this chapter or upon demonstrated inability to operate or manage the massage/bodywork establishment in a law abiding manner, thus necessitating action by law enforcement officers or in such manner as to constitute a menace to the health, safety, or general welfare of the public. C. The Chief of Police may summarily suspend a massage/bodywork establishment permit for a period of thirty (30) days for each violation of this chapter or may summarily suspend a massage/bodywork practitioner's permit for a period of thirty (30) days for each violation of this chapter. D. The Chief of Police may revoke or refuse to renew a massage/bodywork practitioner's permit if he or she makes any of the findings for denial of a license under this chapter or upon any subsequent violation of any provision of this chapter within one (1) year following a suspension authorized under this chapter. E. The Chief of Police may revoke, suspend 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/bodywork establishment or is engaged in conduct as a massage/bodywork Pag¢16 of 20 S:\COUNCIL\Ords\MassageOnl041803 .doc - April 18, 2003 7 practitioner 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/bodywork establishment, shall include the managing responsible officer or managing employee. F. When the Chief of Police concludes grounds for denial, suspension, 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 holder, with a notice of denial or notice of intent to suspend, revoke or refuse to renew 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. 5.32.210 Appeal of Suspension, Revocation, or Non-Renewal. No later than fifteen (15) calendar days after mailing of notice of revocation, suspension, or denial of renewal, the permit holder may appeal the Chief of Police's decision to the City Manager by the procedure for appeal as set forth in Section 5.32.110 of this chapter. The hearing and notice of the decision shall be given in the same manner as provided in Section 5.32.110 of this chapter. The decision of the City Manager, or his or her designee, shall be final. 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. In the event the decision of the City Manager upholds the revocation or non-renewal of the permit, the applicant or permit holder shall not be entitled to reapply for a permit under this chapter sooner than ninety (90) days after the date of the decision of the City Manager. 5.32.220 Restricted Permit. A permit issued under this chapter is restricted and does not confer any property rights or privileges to the holder, and the holder thereof does not have any right to renewal of such permit. The Chief of Police may, without hearing, issue an order suspending the permit holder's right to further exercise any privileges granted under such a permit pending final determination made after formal hearing as provided for herein. S:\COUNCIL\Ords\MassageOrd041803 .doc - April 18, 2003 Page 17 of 20 5.32.230 Violation and Penalty. A. It is unlawful for any person, association, firm or corporation to engage in, conduct or carry on, or to permit to be engaged in, conducted, or carried on, in or upon any premises, the business of massage/bodywork or to render or permit to be rendered massage/bodywork services at a location removed from a massage/bodywork establishment in the absence of a permit issued pursuant to the provisions set forth in this chapter. B. Any massage/bodywork establishment operated, conducted, or maintained contrary to the provisions of this chapter shall be unlawful and a public nuisance, and the City Attorney may, in the exercise of discretion, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in any manner provided by law. C. A violation of any of the provisions or failing to comply with any of the mandatory requirements of this chapter shall constitute a misdemeanor; except that notwithstanding any other provision of this code, any such violation constituting a misdemeanor under this chapter may, in the discretion of the City Attorney, be charged and prosecuted as an infraction. Any violation of this chapter prosecuted as a misdemeanor shall be punishable by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the county jail for a period of not more than six (6) months, or by both fine and imprisonment. Any infraction prosecuted under the provisions of this chapter shall be made punishable by a fine not to exceed five hundred dollars ($500.00). D. 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. E. Pursuant to the City Attorney's prosecutorial discretion, the city may enforce violations of this chapter as criminal, civil and/or administrative violations utilizing administrative remedies. F. It is the duty of the Chief of Police to enforce rules and regulations in accordance with this chapter. 5.32.240 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. Page 18 of 20 S:\COUNCI L/Ords~vlassag¢Ord041803 .doc - April 18, 2003 SECTION 2. This Ordinance shall be posted in accordance with the Bakersfield Municipal Code and shall become effective thirty (30) days from and after the date of its passage. S :\CO UNC 1L\Ords~VlassageOrd041803 .doc April 18, 2003 Pagel9of20 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 MaY 1 4 2003 by the following vote: AYES: COUNCIL MEMBER COUCH, CARSON, BENHAM, MAGGARD, HANSON, SULLIVAN, SALVAGGIO NOES: COUNCIL MEMBER ABSTAIN: COUNCIL MEMBER ABSENT: COUNCIL MEMBER ~ - CITY CLERK and EX OFFI(~O of the Council of the City of Bakerslield APPROVED: MAY 1,~ 2003 By: HARVEY L. HALL // Mayor , APPROVED ASTO FORM: BART J. THILTGEN City Attorney By: citY'Attorney-- S:\COUNCIL\Ords'~VlassagcOrd041803 .doc April 18, 2003 Page 20 of 20 AFFIDAVIT OF POSTING DOCUMENTS STATE OF CALIFORNIA) County of Kern ) PAMELA A. McCARTHY, being duly sworn, deposes and says: That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and that on the 15th day of May , 2003 she posted on the Bulletin Board at City Hall, a full, true and correct copy of the following: Ordinance No. 4123 , passed by the day of May 2003 and Bakersfield City Council at a meeting held on the 14th entitled: ORDINANCE AMENDING BAKERSFIELD MUNICIPAL CODE SECTION 5.32.010 RELATING TO MASSAGE/BODYVVORK ESTABLISHMENTS. Is~ PAMELA A. McCARTHY City Clerk of the City of Bakersfield DEPU~Ierk