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HomeMy WebLinkAboutOrdinances - No. 1982ORDINANCE NO. 1982 AN ORDINANCE OF THE LODI CITY COUNCIL AMENDING LODI MUNICIPAL CODE TITLE 5 — PERMITS AND REGULATIONS — BY REPEALING AND REENACTING CHAPTER 5.32, "MASSAGE ESTABLISHMENTS," IN ITS ENTIRETY BE IT ORDAINED BY THE LODI CITY COUNCIL AS FOLLOWS: SECTION 1. Lodi Municipal Code Chapter 5.32 Massage Establishments is hereby repealed and reenacted in its entirety to read as follows: Chapter 5.32 - MASSAGE ESTABLISHMENTS Sections - 5.32.005 - Findings and Purpose. The City Council finds and declares as follows: A. The permit requirements and restrictions imposed by this chapter are reasonably necessary to protect the health, safety, and welfare of the citizens of the City of Lodi. B. The City of Lodi is authorized, by virtue of the California Constitution and Section 51031 of the Government Code, to regulate massage establishments by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of massage establishments. CHAPTER 5.32 MASSAGE ESTABLISHMENTS Sections: 5.32.005 Findings and Purpose. 5.32.010 Definitions. 5.32.015 Operators Permit Required. 5.32.020 Application for Operator's Permit. 5.32.025 Operator's Permit: Issuance; Denial; Operation. 5.32.030 Massage Technician's Permit. 5.32.035 Off -Premises Massage Permit. 5.32.040 Massage Establishment Facilities and Operations. 5.32.045 Change of Business. 5.32.050 Fees. 5.32.055 Exemption from Permit Requirements. 5.32.060 Transfer and Duration of Permits. 5.32.065 Suspension, Revocation, Denial, and Appeal. 5.32.070 Compliance with this Chapter. 5.32.075 Operation with Revoked Permit. 5.32.080 Massage Technician Compliance with this Chapter. 5.32.085 Violation and Penalty. 5.32.090 Unlawful Operation Declared Nuisance. 5.32.095 California Massage Therapy Council (CAMTC) Exemption. Chapter 5.32 - MASSAGE ESTABLISHMENTS Sections - 5.32.005 - Findings and Purpose. The City Council finds and declares as follows: A. The permit requirements and restrictions imposed by this chapter are reasonably necessary to protect the health, safety, and welfare of the citizens of the City of Lodi. B. The City of Lodi is authorized, by virtue of the California Constitution and Section 51031 of the Government Code, to regulate massage establishments by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of massage establishments. C. There is significant risk of injury to massage clients by improperly trained and/or educated massage technicians, and this chapter provides reasonable safeguards against injury and economic loss. D. Regulating the business of massage is necessary to preserve the health and safety of the individuals using or working in such establishments by regulating the sanitation and decency of such establishments, the maintenance of facilities, and by requiring the operator's compliance with applicable state law. E. This chapter will also serve to reduce or eliminate the risk of illegal activity, which may result from a lack of regulation of massage establishments. F. Issuance of a license to engage in the business of massage in the City of Lodi without adequate regulation would unduly jeopardize the health, morals, and welfare of the community. 5.32.010 - Definitions. Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this chapter. "California Massage Therapy Council" or "CAMTC" means that organization created pursuant to Section 4600 et seq. of the California Business and Professions Code. "CAMTC certificate" means a current and valid certificate issued by the CAMTC to a certified massage therapist or certified massage practitioner pursuant to Section 4600 et seq. of the California Business and Professions Code. "Chief of Police" means the Chief of Police of the City of Lodi, or designated representative. "City Manager" means the City Manager of the City of Lodi or designated representative. "City Council" means the City Council of the City of Lodi. "Conviction" or "convicted" means a plea or verdict of guilty or a conviction following a plea of nolo contendere. "Client area" means areas open to customers of the massage establishment. "Employee" for purposes of this chapter, the term "employee" shall include independent contractors. "Health department" means San Joaquin County Public Health Services. "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. Evidence of management includes, but is not limited to, evidence that the individual has power to direct, hire, or dismiss employees, 2 control hours of operation, create policies or rules, or purchase supplies. A manager may also be an owner. "Massage" or "Bodywork" means the scientific manipulation of the soft tissues, as defined in California Business and Professions Code Section 4601. "Massage establishment" means any business conducted within the City of Lodi where any person, firm, association, partnership, corporation, or combination of individuals engages in, conducts, carries on, or permits to be conducted or carried on, for money or any other consideration, any activity set forth in the definition of "massage" in this section, and any establishment engaged in, carrying on, or permitting any combination of massage, baths, or health treatments involving massage or baths, shall be deemed a massage establishment. "Massage technician" means any person who is certified by the CAMTC pursuant to Section 4604.2 of the California Business and Professions Code to administer to another person, for any form of compensation, a "massage" as defined in this section, unless otherwise exempt from CAMTC certification under LMC section 5.32.095. The term "certified massage therapist" and "certified massage practitioner" are included within this definition for purposes of this chapter. "Massage technician's permit" means the permit required pursuant to the provisions of this chapter for a massage technician. "Moral turpitude" means a crime which infringes upon the moral sentiment of the community, as distinguished from acts prohibited by law. "Operator" means all persons who have ownership interest in the massage establishment and are responsible for its day-to-day operations. "Operator's permit" means the permit required pursuant to the provisions of this chapter to operate or manage a massage establishment. "Owner" means the individual(s) whose name appears on the City business license. "Person" means any individual, corporation, partnership, firm, association, or other group or combination of individuals of whatever form or character. "Police Department" means the Police Department of the City of Lodi. "Recognized school" means an "approved school" or "approved massage school" as such term is defined and applied in Section 4600 et seq. of the California Business and Professions Code. 5.32.015 - Operator's Permit Required. No person shall operate a massage establishment within the City without first obtaining an operator's permit pursuant to Sections 5.32.020 and 5.32.025 of this chapter, securing the necessary business license as required by this code, and complying with Title 17 of this code. 3 5.32.020 - Application for Operator's Permit. Any person seeking an operator's permit for a massage establishment shall file a written application on the required form with the Police Department who shall conduct an investigation. The application shall be accompanied by a nonrefundable filing fee established from time to time by resolution of the City Council to defray the cost of investigation required by this chapter. The application shall be completed and signed by the operator or manager of the proposed massage establishment, if a sole proprietorship; one general partner, if the operator is a partnership; one officer or one director, if the operator is a corporation; and one participant, if the operator is a joint venture. The application for permit does not authorize operation of a massage establishment unless and until such permit has been properly granted. The application shall contain or be accompanied by the following information: A. The type of ownership of the business; i.e., whether by individual, partnership, corporation, or otherwise. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent (5%) of the stock of that corporation. If the state of incorporation is outside of California, the corporation must be qualified to conduct business in California by the Secretary of State. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners, including limited partners. If it is a limited partnership, it shall furnish a copy of its certificate of limited partnership filed with the Secretary of State. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporations shall apply. The applicant corporation or partnership shall designate one of its officers or general partners to act as its responsible managing officer. Such designated persons shall complete and sign all application forms required for an individual applicant under this chapter, but only one application fee shall be charged. B. The precise name under which the massage establishment is to be conducted. C. The complete address and all telephone numbers of the massage establishment. D. A description of any other business operated on the same premises, or within the City of Lodi, which is owned or operated by the applicant. E. The following personal information concerning the applicant Full true name and all aliases used at any time by the applicant. 2. Current residence address and telephone number of the applicant. The previous residence addresses of the applicant, if any, for a period of eight (8) years immediately prior to the date of the application and the dates of residence at each. 3. Acceptable written proof that the applicant is at least eighteen (18) years of age. 4. Height, weight, color of hair, eyes, gender, and date and place of birth, unless the applicant is a partnership or corporation, in which case this information shall be supplied for the person or persons authorized to execute the application. 4 5. Government issued photo identification. 6. The applicant's complete business, occupation, and employment history for the eight years prior to the date of application, including, but not limited to, the massage or similar business history and experience of the applicant. 7. The name and address of the recognized school attended, the date attended, and a copy of the diploma or certificate of graduation awarded to all individuals that will be performing massage services. 8. The complete massage permit history of the applicant; whether such person has ever had any permit or license issued by any agency, board, city, county, territory, or state; the date of issuance of such a permit or license, whether the permit or license was denied, revoked, or suspended; or if a vocational or professional license or permit was denied, revoked, or suspended; and the reason(s) therefore. 9. All criminal convictions, including pleas of nolo contendere and ordinance violations, within the ten (10) year period prior to the date of the application, including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding minor traffic violations, all pending criminal investigations and charges, and the date and place of each such conviction, investigation, and charges, and the reason(s) therefore. 10. A complete set of fingerprints taken by the Police Department, unless fingerprints were completed as part of the applicant's CAMTC certificate. 11. A copy of the applicant's CAMTC certificate, unless exempt under LMC section 5.32.095. F. The name and address of the owner and lessor of the real property upon or in which the massage establishment is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease or notarized acknowledgement from the owner of the property that a massage establishment will be located on the subject property. G. Authorization for the City, its agents, and employees to verify the information contained in the application. H. Such other identification and information as the Chief of Police may require in order to discover the truth of the matters specified and required to be set forth in the application. I. A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct. J. If, during the term of a permit, the permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the Police Department in writing of such change within ten business days thereafter. K. A statement as to whether the applicant intends at any time to employ more than two massage technicians on-site performing massages simultaneously. 5 A statement as to whether the applicant intends to provide massage services off - premises. 5.32.025 - Operator's Permit—Issuance—Denial—Operation. A. Issuance of Application. Upon receipt of the completed application, the Chief of Police shall have sixty 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. The sixty-day period may be extended for up to thirty additional days by the Chief of Police, if necessary, to complete the investigation. Upon completion of the investigation, the Chief of Police shall grant the permit if he/she finds: The required fee has been paid. 2. The applicant conforms in all respects to the provisions of this chapter. 3. The applicant has not knowingly made any false, misleading, or fraudulent statements in the application. 4. The applicant has fully cooperated in the investigation of his or her application. 5. The applicant, if an individual, or any 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 266, 314, 315, 316, 318, 647(a), and 647(b), or any felony offense involving the sale of a controlled substance as specified in Sections 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code or convicted of an attempt to commit any of the abovementioned 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 abovementioned offenses, or any crime involving dishonesty, fraud, deceit, or moral turpitude. 6 The massage establishment, as proposed by the applicant, would comply with all applicable laws, including but not limited to zoning, fire, and safety requirements and standards. 7. The applicant is at least eighteen (18) years of age. 8. The applicant has not engaged in conduct which would constitute grounds for suspension or revocation under this chapter. B. Denial. If an application is denied, the applicant may not reapply for a period of six (6) months from the date the application was denied. R C. Operation. All operators and managers of massage establishments shall comply with the following operating requirements and any conditions specified by the Chief of Police upon issuance of a permit: 1 No massage technician or employee shall massage the genitals, or anal region of any patron; further no massage technician or employee shall massage the breasts of any female patron without the written consent of the person receiving the massage and a referral from a licensed California health care provider. No operator or manager of a massage establishment shall allow or permit such massages. No massage operator or designated manager while performing any task or service associated with the massage business shall be present in any room with another person unless the person's genitals, gluteal fold, anus, or the female breast(s), are fully covered. 2. No owner, operator, or manager will instruct or allow any person or persons to instruct or engage in, practice, or learn the art of massage on clients or other staff members at any massage establishment unless such instruction is conducted in accordance with laws, regulations, and guidelines of the State of California and the CAMTC. 3. No person granted a permit pursuant to this chapter shall use any name or conduct business under any designation not specified in his or her permit. 4. All massage establishments required to be licensed under this chapter shall have a manager on the premises at all times that the massage establishment is open. The operator of each massage establishment shall file a statement with the Chief of Police designating the person or persons with power to act as a manager. The operator and/or on duty manager shall post, on a daily basis, the name of each on duty manager and each on duty massage technician in a conspicuous public place in the lobby of the massage establishment. The operator, or the manager in the operator's absence, shall be responsible for ensuring compliance with this chapter. 5. No licensed massage establishment shall be open for business without having at least one massage technician holding a current valid permit for the specific establishment on the premises, and on duty, at all times when said establishment is open. 6. The operator and designated manager(s) shall ensure each on -duty massage technician's permit or a copy of his or her certification card is conspicuously displayed in a public place in the lobby and that at all times when the massage establishment is open each massage technician is wearing, or has on their person, a certification card issued by the CAMTC or by the City under the prior versions of this chapter and as permitted by Section 5.32.095. Such identification shall be provided to City or other regulatory officials upon demand. 7. An operator and/or on duty manager shall be responsible for the conduct of all employees while the employees are on the premises. Any act or omission of any employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator for purposes of determining whether the operator's permit shall be revoked, suspended, denied, or renewed. 7 8. No operator or manager shall employ any person as a massage technician who does not have a valid certification to perform massage issued by the CAMTC, unless otherwise exempt under this chapter. Every operator or manager shall report to the Chief of Police any change of employees, whether by new or renewed employment, discharge or termination, on the form and in the manner required by the Chief of Police. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within five (5) days of the date of hire or termination. The operator shall deliver the City issued permit and photo identification card of any massage technician no longer employed by the operator to the Chief of Police within five (5) days of the termination of employment. 9 No persons employed in the massage establishment shall be dressed in a manner violating California Business and Professions Code Section 4609(a)(10), while engaged in the practice of massage for compensation, or while visible to clients in a massage establishment, including any of the following: A Attire that is transparent, see-through, or substantially exposes the undergarments; B. Swim attire, if not providing a water-based massage modality approved by the California Massage Therapy Council; C. A manner that exposes the breasts, buttocks, or genitals; D. A manner that constitutes a violation of Section 314 of the California Penal Code; and E. A manner that is otherwise deemed by the California Massage Therapy Council to constitute unprofessional attire based on the custom and practice of the profession in California. 10. The operator shall comply with all provisions of this chapter and any applicable provisions of this code. 11. No operator, owner, massage technician, or other employee shall have on the premises: (a) any videos, pictures, or magazines depicting pornographic material; (b) condoms; or (c) other sexual devices. 12 All persons employed at any massage establishment must be a United States citizen or be legally authorized to work in the United States. 5.32.030 - Massage Technician's Permit. No person shall perform or administer a massage, or advertise to provide massage services in the City of Lodi, unless such person has in effect a valid certification to perform massage issued by the CAMTC, unless otherwise exempt as provided in this chapter, and the necessary business license as required by this code. n 5.32.035 - Off -Premises Massage Permit. A. For purposes of this chapter, a massage performed or administered off -premises and requiring an off -premises massage permit shall be one performed or administered for money or any other consideration by a licensed massage technician at a location other than a massage establishment. B. No person shall perform or administer a massage off the premises of a massage establishment, for money or any other consideration, without a valid CAMTC certification, unless otherwise exempt under this chapter, in conjunction with a valid operator's permit and an off - premises massage permit under this chapter. Any person desiring an off -premises massage permit shall file a written application on the required form with the Police Department, which shall conduct an investigation. The applicant shall accompany the application with the appropriate filing fee. The application shall contain or be accompanied by the following information: 1. The complete name, including all aliases used at any time, residence and business address, and telephone number of the applicant. 2. The precise name and complete address and telephone number of each person receiving the off -premises massage. 3. The complete address at which the off -premises massage is to be conducted. 4. The specific reasons necessitating the performance of the massage at a location other than a massage establishment. If the off -premises massage is to be conducted at a commercial business during normal business hours while patron remains fully clothed, a letter from the commercial business confirming these conditions shall accompany the application. 5. Such other information deemed necessary by the Chief of Police. C. Upon receipt of a written application for an off -premises massage permit, the Chief of Police shall initiate an investigation to ascertain whether such permit should be issued as requested. Within fifteen (15) business days of the filing of an application, the Chief of Police shall approve, conditionally approve, or deny the application. The Chief of Police shall issue the permit unless he or she finds that it is not reasonably necessary to perform or administer the massage at a location other than the massage establishment. The Chief of Police may specify conditions for the issuance of the off -premises massage permit that are reasonably necessary to ensure compliance with this chapter, other City ordinances, and applicable state law. An off premises permit for chair massage only shall be valid for a period of one (1) year. Chair massage is where a patron receives a massage while fully clothed in a public or semi-public area. The areas massaged are the head, neck, back, and arms only. 5.32.040 - Massage Establishment Facilities and Operations A. Facilities Structure. Massage shall be carried on in a structure, which is located in a zoning district which permits such use. When a new massage establishment is A constructed, three sets of plans shall be submitted to the City of Lodi Community Development Department for approval and shall be accompanied by the appropriate fees. The structure must comply with all applicable provisions of the Lodi Municipal Code, including Titles 15 and 17. 2 Signs. Subject to applicable provisions of this code, each operator shall post and maintain, adjacent to the main entrance and the front of the business, a legible sign identifying the premises as a massage establishment. Each operator and/or duty manager shall display the operator's permit in a conspicuous public place in the lobby of the massage establishment. The hours of operation of the establishment must be posted in the front window and clearly visible from the outside. The operator and/or on duty manager must also post, on a daily basis in a conspicuous public place in the lobby of the establishment, the name of the operator and/or on duty manager. 3. Services List. Each operator shall post and maintain a list of services available and the cost of such services in a conspicuous public place within the premises. No operator or responsible managing employee shall permit, and no massage technician shall offer to perform, any service other than those posted. 4. Lighting and Ventilation. Each operator shall provide in each room where massage is given sufficient lighting and ventilation that complies with the Uniform Building Code. 5. Toilet and Wash Basin Facilities. A minimum of one toilet and one wash basin shall be provided for patrons in each massage establishment, which wash basin shall provide soap or detergent and hot and cold running water at all times and shall be located within close proximity to the area devoted to the performing of massage services. A permanently installed soap dispenser, filled with soap, and a single service towel dispenser shall be provided at the wash basin. Bar soap shall not be in the washroom. A trash receptacle shall be provided in each toilet room. 6. Maintenance. All facilities of the massage establishment must be in good repair and shall be thoroughly cleaned and sanitized each day the business is in operation. All walls, floors, and ceilings of each restroom shall be made smooth and easily cleanable. No carpeting shall be installed in restrooms. 7. Massage Table. A massage table shall be provided in each massage room and the massage shall be performed on the massage table. The tables shall have a minimum height of eighteen inches. Two -inch -thick foam pad with a maximum width of four feet and must be covered with durable, washable plastic or other waterproof material. Beds, floor mattresses, and waterbeds shall not be on the premises. 8. Linen Storage. Closed cabinets shall be provided and utilized for storage of clean linens and towels. Receptacles shall be provided for the deposit of soiled linens and towels. 10 B. Operations. 1 Equipment. Each operator and/or duty manager shall provide and maintain on the premises adequate equipment for disinfecting and sterilizing instruments used in massage. 2. Inspections. The operator and/or duty manager consents to the inspection of the massage establishment by the City's Community Development Department, Fire Department, and Police Department, the San Joaquin County Health Department, and the California Massage Therapy Council for the purpose of determining that the provisions of this chapter or other applicable laws or regulations are met. a. The City's Community Development Department, Fire Department, and Police Department, the San Joaquin County Health Department, and CAMTC may, from time to time, make an inspection of each massage establishment for the purpose of determining that the provisions of this chapter, state law, or other applicable laws or regulations are met. The Police Department may inspect the occupied massage rooms for the purpose of determining that the provisions of this chapter are met upon occurrence of any of the conditions described in Section 5.32.040(8)(18), which would require the posting of the notice to all patrons as described therein. During an inspection, the Police Department may verify the identity of all on -duty employees. b. Inspections of the massage establishment shall be conducted during business hours unless it appears that the massage establishment is operating after the posted hours of operation. C. All areas located within or attached to the massage establishment are subject to inspection. Searchable areas include but are not limited to massage rooms, bath and/or restrooms, closets, offices, cabinets, drawers, kitchens, basements, garages, and lobby areas. d Any massage establishment that offers services other than massages, such as, but not limited to a tanning studio, acupressure, mud baths, or nail salon is subject to inspection if these services share the same building and are accessible from the massage establishment. e A person who operates a massage establishment or his or her agent, servant, or employee shall permit a lawful inspection of the premises by a representative of the Police Department at any time it is occupied or open for business. 3. Towels and Linens. Towels and linens shall not be used on more than one patron until they have been laundered and disinfected. Disposable towels and coverings shall not be used on more than one patron. 4. Living Prohibited. No person or persons shall be allowed to live inside the massage establishment at any time. All living quarters shall be separate from the massage establishment and must comply with applicable zoning and building 11 laws under this code and state law. No food of any kind shall be prepared for sale or sold in the establishment unless an appropriate food -vending permit has been issued. 5 Alcoholic Beverages/Drugs. Massage establishment personnel shall not sell, serve, or furnish alcoholic beverages in the massage establishment unless the massage establishment has a valid license issued by the State of California, Alcoholic Beverage Control ("ABC'). Alcoholic beverages shall not be consumed, and massage establishment personnel must not allow a person to consume an alcoholic beverage in a massage establishment unless the establishment has complied with all applicable ABC requirements and the person consumes the alcoholic beverage in designated areas away from any rooms where massage services are performed. Controlled substances must not be consumed in a massage establishment unless the person has a prescription for the controlled substance. 6. Recordings. No electrical, mechanical, or artificial device shall be used by the operator or any employee of the massage establishment for audio and/or video recording or for monitoring the performance of a massage, or the conversation or other sounds in the massage rooms without the knowledge or consent of the patron. 7. Roster. The owner, operator, or on duty manager of the massage establishment shall keep a complete and current list of the names and residence addresses of all massage technicians and employees of the massage establishment and the name and residence addresses of the manager or managing employee purported to be principally in charge of the operation of the massage establishment. This roster shall be kept on the premises and be available for inspection by any official of the City charged with the enforcement of this chapter. Massage establishments shall only employ and/or retain persons to conduct massage services who are certified massage technicians with an active and valid certificate issued by the CAMTC, unless exempt pursuant to Lodi Municipal Code Section 5.32.095. 8. Coverings. Each massage establishment shall provide to all patrons clean, sanitary, and opaque coverings capable of covering the patrons including the genitals, and female breast(s). No common use of the coverings shall be permitted and re -use is prohibited unless the covering has been laundered and disinfected. 9. Hours of Operation. The owner must advise the City, in writing, at the time of the application for a permit of the business hours and any changes in hours. No person shall operate a massage establishment or administer a massage in any massage establishment or administer a massage pursuant to an off premises massage permit between the hours of ten (10) p.m. and six (6) a.m. A massage begun any time before ten (10) p.m. must nevertheless terminate at ten (10) p.m. Except during the hours of operation, all customers, patrons and visitors shall be excluded from the massage establishment. The hours of operation must be displayed in a conspicuous public place in the lobby within the massage establishment and in the front window clearly visible from the outside. It is 12 unlawful for a massage to be conducted, or for the massage establishment to be open, between the hours of ten (10) p.m. and six (6) a.m. 10. Advertising. No massage establishment granted a permit under this chapter 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 or clients that any service is available other than those described in this chapter, nor shall any massage establishment employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available other than those services authorized by this chapter. This subparagraph (10) is regulatory only. 11. Insurance. The owner or operator must provide worker's compensation insurance to all employees pursuant to California Labor Code Sections 3710.1 and 3710.2. The massage establishment will be immediately closed pending verification of worker's compensation insurance with the California Labor Commission. This section does not apply to an owner or operator who does not have employees. 12. Disabled Access. All massage establishments must comply with all state and federal laws and regulations applicable to the provision of access for disabled patrons. 13. Compliance. Proof of compliance with all applicable provisions of this code shall be provided upon request to any officials of the City charged with enforcement of this chapter. 14. Doors. All front, reception, hallway, massage room doors, and exterior doors used by patrons to gain access to the establishment shall remain unlocked during business hours. No massage may be given within any cubicle, room, booth, or any area within a massage establishment, which is fitted with a door capable of being locked, unless the only door is an exterior door. No door to any room shall be obstructed by any means. Notwithstanding these restrictions, a massage establishment may lock its external doors during business hours if the massage establishment is a sole proprietorship with one or no employees or independent contractors, as set forth in California Government Code section 51034(c)(6). 15 Access. No person(s) other than valid permit holders under this chapter and patrons shall be allowed anywhere in the massage establishment other than the lobby/reception area during hours of operation. 16. Loitering. Any persons convicted of any violations specified in Section 5.32.025(A)(5) in this chapter or who have been denied a permit from the City of Lodi will be forbidden to work, loiter, volunteer, or be present on the premises of any massage establishment. 17. Discrimination. No massage establishment may discriminate or exclude patrons on the basis of race, color, sex, sexual orientation, religion, age, marital status, national origin, or ancestry, physical disability, or any other criteria prohibited by law. 13 18. Notices. The Chief of Police shall require the following notice be posted in the event that any employee of the massage establishment or any person who has been aided and abetted by an employee of the massage establishment has been found, after full hearing by administrative proceeding or state court, to have violated any of the provisions listed in Section 5.32.025(C): NOTICE TO ALL PATRONS THE MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION BY THE LODI POLICE DEPARTMENT WITHOUT PRIOR NOTICE. a. The notice set forth above shall be prepared and issued by the Chief of Police. The expense incurred for the notice will be paid by the operator. b. The notices shall be conspicuously posted in a location within the massage establishment that is easily visible to any person entering the premises and in each room. The notice shall be posted for twelve (12) months following the violation of any of the offenses described above. C. The requirement for posting the notice described in this section is cumulative and in addition to all other remedies, violations, and penalties set forth in this chapter, or in the ordinance, laws, rules, or regulation of the City of Lodi, County of San Joaquin, and the State of California. 5.32.045 - Change of Business. Every massage establishment operator shall report immediately to the Police Department any and all changes of ownership or management of the massage establishment, including, but not limited to: changes of manager or other person principally in charge; stockholders holding more than five percent (5%) of the stock of the corporation; officer, directors and partners in any and all changes of name, style, or designation under which the business is to be conducted; and all changes of address or telephone numbers of the massage establishment. A change of location of the massage establishment will be approved by the Chief of Police provided there is compliance with all applicable regulations of the City of Lodi. 5.32.050 - Fees. The City Council shall establish by resolution, and from time to time may amend, the fees for the administration of this chapter. Fees required by this chapter shall be in addition to any required under any other chapter of this code. 5.32.055 — Exemption from Permit Requirements. A. The provisions of this chapter shall not apply to the following classes of individuals or groups while engaged in performing the duties of their respective professions: Exemptions do not apply to employees unless: (1) the conduct of the employee is regulated by state law pertaining to physicians, surgeons, chiropractors, osteopaths, acupuncturists, and physical therapists, and (2) the employee and employer are performing their duties in accordance with state law. 14 Physicians, surgeons, chiropractors, osteopaths, acupuncturists, and physical therapists duly licensed to practice in the State of California. 2 Hospitals, nursing homes, sanitariums, or other health care facilities duly licensed by the State of California, provided that all times such physicians, surgeons, chiropractors, osteopaths, and physical therapists are acting in adherence with the provisions of the state law which govern this field. 3 Nurses duly registered by the State of California 4. Barbershops and beauty parlors, barbers, and beauticians when engaged in the practice for which they are licensed by the State of California. 5. Accredited high schools and colleges and coaches and trainers employed therein while acting within the scope of their employment. 6. Trainers of any amateur, semi-professional or professional athlete, or athletic team. B. Commencing on the effective date of the ordinance codified in this chapter, all permits are to be issued in accordance with the provisions of this chapter. C. The provisions of this chapter shall be applicable to persons engaged in the businesses regulated by this chapter prior to the effective date of the ordinance codified in this chapter, and to persons employed as massage technicians prior to the effective date of the ordinance codified in this chapter. Notwithstanding any other provision of this section, such persons shall file for the permits required by this chapter within one hundred eighty (180) days from the effective date of the ordinance codified in this chapter. Failure to do so shall make the continued operation of the businesses or the continued employment as a massage technician a violation of this chapter. 5.32.060 - Transfer and Duration of Permits A. No massage technician permit or permit for massage operators issued hereunder shall be transferable to any other person or establishment, provided however, an additional location or change of location of a massage technician permit will be allowed upon prior written notice to the Chief of Police and payment of the appropriate fee. B. Permits for massage operators and technicians shall be renewed every two (2) years provided that the permittees continue to meet the requirements set out in this chapter. Permit holders are responsible for maintaining a valid Permit and/or CAMTC certification and for providing proof to the City of the Permit or CAMTC certificate renewal prior to the expiration date. C. Applications for renewing a permit required under this chapter shall be filed with the Chief of Police before the expiration of the existing permit. Temporary permits will not be issued and a renewal application must be filed no later than sixty (60) days prior to the expiration of the existing permit to prevent a lapse of said permit. D. Renewal applications shall include at a minimum, the information required on the initial application and such other information as may be required by the Chief of Police to update the 15 information contained in the original permit application. The applicant shall accompany the application for renewal with the appropriate filing fee as set forth in Section 5.32.060 of this chapter, which shall be established from time to time by resolution of the City Council to defray the cost of investigation required by this chapter. E. Renewal applications for massage technician permits issued prior to the effective date of this chapter shall be accompanied by authorization for the City, its agents, and employees to verify the information contained in the application, and a statement in writing, and dated, by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct. The renewal application shall include the following information: A statement of the location at which the applicant will be working as a massage technician, including the full street address and all telephone numbers associated with said location; 2. Full true name and all aliases used at any time by the applicant, along with current residence address and telephone number; 3. All previous residential addresses, if any, for a period of eight (8) years immediately prior to the application and the dates of residence at each; 4. Acceptable written proof that the applicant is at least eighteen (18) years of age; 5. Height, weight, color of hair and eyes, gender, and date and place of birth; 6. Government issued photo identification; 7. The business, occupation, and employment history of the applicant for the eight (8) years prior to the date of the application; 8. The complete permit history of the applicant, including whether the applicant has ever had any license or permit, issued by any agency, board, city, or other jurisdiction, denied, revoked, or suspended and the reason(s) therefore; and 9. All criminal convictions, including pleas of nolo contendere and ordinance violations, within the ten (10) years prior to the date of the application, including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and reason therefore. F. If, during the term of a permit, a permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the Police Department in writing of such change within ten (10) business days thereafter. 5.32.065 - Suspension, Revocation, Denial, and Appeal. A. Violation and Non -Compliance. The Chief of Police may refuse to renew a permit or may revoke or suspend an existing permit 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 16 suspension period. In any case, the applicant or permit holder shall have the right to appeal to the City Council in the time and manner set forth in this chapter. B. Revocation and Suspension of Operator's Permit. 1. The Chief of Police may revoke or refuse to renew an operator's permit if he or she makes any of the findings sufficient for denial of a permit under Section 5.32.025(A), Section 5.32.025(8), or upon any subsequent violation of any provision of this chapter within one year following prior suspension under subsection (13)(2) of this section. 2. The Chief of Police may suspend an operator's permit for a period of thirty (30) days for each violation of Section 5.32.025 not listed above, or Section 5.32.040. 3. The Chief of Police's decision to suspend or revoke a license upon two (2) or more violations during any twelve (12) month period as long as the elements of such violation can be proven by a preponderance of credible evidence. C. Revocation and Suspension of Massage Technician's Permit The Chief of Police may revoke or refuse to renew a massage technician's permit if he or she makes any of the findings for denial of a permit under Section 5.32.065 or upon any subsequent violation of any provision of this chapter within one (1) year following a suspension under subsection (C)(2) of this section. 2. The Chief of Police may suspend a massage technician's permit for a period of thirty (30) days for each violation of Section 5.32.025 not listed above, or Section 5.32.040. 3. The Chief of Police may suspend or revoke a massage technician's permit upon two or more violations of this chapter, whether it resulted in a criminal conviction or not, during any twelve-month period as long as the elements of such violation can be proven by a preponderance of credible evidence. D. Notice. When the Chief of Police concludes that grounds for denial, suspension, revocation, or refusal to renew a permit 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 reason(s) for the proposed action, the effective date of the decision, the right of the applicant or permit holder to appeal the decision as set forth below, and that the decision will be final if no appeal is filed within the time permitted. E. Appeal. Any applicant/permittee dissatisfied with the action of the Chief of Police or designee under this chapter, may appeal such decision by delivering to the City Clerk not more than ten (10) days after the effective date of such decision, a 17 notice of appeal, along with a brief description of the reasons therefore. The City Clerk shall immediately forward such request to the City Manager for handling. 2 The City Manager shall upon receipt of the appeal set the matter for hearing before a hearing officer. The hearing officer shall be an attorney or recognized mediator designated by the City Manager. The hearing shall be scheduled for not more than thirty (30) days after receipt of the appeal unless a longer time is requested or consented to by the appellant. The hearing shall not be conducted under the formal Rules of Evidence, but shall be subject to such standards of procedure and evidence, as reasonable people would utilize in the conduct of serious business. 3 The hearing officer shall, within fifteen (15) days of the conclusion of the hearing, make a written finding and decision, which shall be delivered to the City Manager and the appellant by first class mail. 4. The decision of the hearing officer shall be final. 5.32.070 - Compliance with this Chapter. It is unlawful for any person to engage in, conduct or carry on, or permit to be engaged in, conducted or carried on, in or upon any premises in the City of Lodi, the application of massage or the operation of a massage establishment in violation of the terms and conditions of this chapter. 5.32.075 - Operation with Revoked Permit. It is unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the City of Lodi, the application of massage or the operation of a massage establishment if such person's permit has been revoked by the City under this chapter or the CMTC. 5.32.080 - Massage Technician Compliance with this chapter. It is unlawful for any person to act as a massage technician in violation of the terms and conditions of this chapter. 5.32.085 - Violation and Penalty. In addition to the revocation/suspension provisions of Section 5.32.065, violations of this chapter may be enforced pursuant to the provisions of Chapter 1.08 of this code. Violations of the provisions of this chapter, unless otherwise noted, are prosecuted as misdemeanors. Those provisions of this chapter deemed "regulatory only" are not enforceable by criminal proceedings. 5.32.090 - Unlawful Operation Declared Nuisance. Any massage establishment operated, conducted, or maintained contrary to the provisions of this chapter shall be, and the same is declared to be, unlawful and a public nuisance. The City Attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal, or enjoinment thereof, in the manner provided by law. The City Attorney shall take such other steps and shall apply to 18 such court or courts as may have jurisdiction to grant such relief as will abate or remove such massage establishments and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary to the provisions of this chapter. 5.32.095 — CAMTC Exemption. A. Any person holding a valid, unsuspended and unrevoked City of Lodi massage technician permit issued pursuant to prior versions of LMC Chapter 5.32 for the purpose of conducting massage or a massage business, and who has held the City of Lodi massage technician permit continually for two (2) or more years as of the effective date of this chapter, shall be exempt from any provision of this chapter requiring a CAMTC certificate in order to be a massage provider if all of the following criteria are met: No substantiated complaints have been lodged with the City of Lodi regarding the massage provider under the massage provider's City of Lodi massage technician permit issued pursuant to LMC Chapter 5.32; and 2. The massage provider's City of Lodi massage technician permit issued pursuant to LMC Chapter 5.32 was valid and in good standing as of the effective date of this chapter; and 3. The massage provider continues to maintain a valid, unsuspended and unrevoked massage technician permit through the City of Lodi as required under LMC Chapter 5.32. B. All other provisions of this chapter shall be applicable to a CAMTC-exempt massage provider, with the exception of the requirement to obtain a CAMTC certificate. SECTION 2. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. SECTION 3. No Mandatory Duty of Care. This ordinance is not intended to and shall not be construed or given effect in a manner which imposes upon the City, or any officer or employee thereof, a mandatory duty of care toward persons or property within the City or outside of the City so as to provide a basis of civil liability for damages, except as otherwise imposed by law. SECTION 4. Severability. If any provision of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the ordinance which can be given effect without the invalid provision or application. To this end, the provisions of this ordinance are severable. The City Council hereby declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof. SECTION 5. Effective Date and PublicationThis Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the Ordinance within fifteen (15) days after its passage, a summary of the Ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the City Council, and a certified copy shall be posted in the office of the City Clerk pursuant to Government Code section 36933(c)(1). 19 Approved this 19th day of May, 2021 L' L, " ALAN NAKANISHI Mayor Attest: 47� J .NIFER SMIR l/ City Clerk State of California County of San Joaquin I, Jennifer Cusmir, City Clerk of the City of Lodi, do hereby certify that Ordinance No. 1982 was introduced at a regular meeting of the City Council of the City of Lodi held May 5, 2021, and was thereafter passed, adopted, and ordered to print at a regular meeting of said Council held May 19, 2021, by the following vote: AYES: COUNCIL MEMBERS — Chandler, Hothi, Khan, Kuehne, and Mayor Nakanishi NOES; COUNCIL MEMBERS — None ABSENT: COUNCIL MEMBERS — None ABSTAIN: COUNCIL MEMBERS — None I further certify that Ordinance No. 1982 was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. F SMIR City Cler Approved as to Form: J� AGDICH City Attorney 20