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HomeMy WebLinkAboutAgenda Report - September 15, 1993 (51)OF CITY OF LODI COUNCIL COMMUNICATION S'ciF AGENDA TITLE: Final Adoption of Ordinance No. 1585 Regulating Massage Establishments and Massage Technicians in the City of Lodi MEETING DATE: September 15, 1993 PREPARED BY: City Attorney RECOMMENDED ACTION: Final adoption of Ordinance No. 1585 regulating massage establishments and massage technicians in the City of Lodi. BACKGROUND: The attached Ordinance was introduced at the Council meeting of September 1, 1993. Certain modifications were made to the original draft as it pertains to "outcall" massage. Section 5.32.180 was modified during the Council meeting to allow "outcall" massage as long as it does not occur at hotels, motels, rooming houses, or similar places offering short-term lodging. It was felt by staff that this would still address the needs of the Police Department for enforcement tools. The Ordinance as presented for final adoption will reflect those charges. FUNDING: Unknown. Respectfully submitted, Bob McNatt City Attorney BM/vc APPROVED ---- — ------------ �, THOMAS A. PETERSON ecycied caper City Manager PDMASSG.2E/TXTA.0 V cc -i CITY OF LODI 221 WEST PINE STREET LODI, CALIFORNIA 95240 ADVERTISING INSTRUCTIONS SiBJECT: ORDINXICE NO. 1585 PUBLISH DATES: WEDNESDAY, SEPTEMBER 22, 1993 TEAR SHEETS WANTED: THREE AFFIDAVIT AND SILL TO: JENNIFER M. PE,(2RIN, CITY CLERK DATED: SEPTEMBER 17, 1993 ORDERED BY: •k /Cd• r/f L{ _ __ 3 1iQICOLINI DEPUTY CITY CLERK ADVINS/TXTA.02J ORDINANCE 158 Sections: Paae 5.32.010 Authority 1 5.32.020 Applicability 1 5.32.030 Definitions 2 5.32.040 Compliance 3 5.32.050 Business license required 3 5.32.060 Permit applications: Requirements 3 5.32.070 Fees 4 5.32.080 Investigation by police 5 5.32.090 Grant or denial 5 5.32.100 Permits non -transferable: Duration of permit 6 5.32.110 Grounds for suspension, revocation or denial 6 5.32.120 Authority to suspend license 7 5.32.130 Notice of intent to deny, revoke, or suspend license: Initial hearing 7 5.32.140 Appeal 8 5.32.150 Inspection of premises 9 5.32.160 Permit display 9 5.32.170 Hours of operation 9 5.32.180 Outcall massage 10 5.32.190 Severability 10 ORDINANCE NO. 1585 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LODI REPEALING AND REENACTING CHAPTER 5.32 OF THE LODI MUNICIPAL CODE, CONCERNING THE LICENSING AND REGULATION OF MASSAGE ESTABLISHMENTS AND MASSAGE TECHNICIANS. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LODI AS FOLLOWS: SECTION 1. Chapter 5.32 of the Lodi Municipal Code is hereby repealed in its entirety and a new Chapter 5.32 is hereby enacted to read in full as follows: Chapter 5.32 MASSAGE ESTABLISHMENTS Section 5.32.010 Authority. The provisions of this Chapter are adopted pursuant to Article 11, Section 7 of the California Constitution, and under Government Code Section 51031 as it now exists or may later be amended. Section 5.32.020 Applicability, A. Subject to the exceptions stated below, the provisions of this Chapter shall apply to all persons and entities engaged in the activities described herein, whether or not they were licensed by the City for such activities prior to the effective date of this ordinance. B. All persons who, prior to the effective date of this ordinance, were licensed by the City of Lodi as Massage Technicians shall have a period of twenty four (24) months from and after the effective date hereof to present proof to the City licensing authority that all further or additional education or training requirements imposed hereunder have been met, and shall pay the fees for licensing and investigation due. During such twenty: four (24) month period, -1- holders of pr,-.iously-issued Massag.: Technicio-. licenses may continue such licensed activities otherwise in compliance with this Chapter.` C. All permits for massage establishments issued by the City prior to the effective date of this ordinance shall remain valid until surrendered, cancelled or revoked under the terms of this Chapter. No further fee shall be required. Section 5.32.030 Definitions. A. "Massage" shall mean the act of tou.-'-ing, rubbing, bathing, stroking, or manipulating of any part of the human body, manually or by vibrator, roller or similar device, or the cpplication of any lotion, alcohol or oil rub, electric or magnetic treatment applied to any portion of the human body for consideration or fee. It shall not include any services or treatment provided by a properly licensed physician, surgeon, osteopath, chiropractor, nurse, physical therapist, or other State -licensed health care professional while actually engaged in the practice of such profession, nor to the students of such professions while actually attending an accredited school. B. "Massage establishment" shall mean any premises or place of business where there is conducted any activity described in Paragraph A above, whether open to the public or as a membership club. C. "Massage Technician" shall mean any person, male or female, who in connection, with the activities of a massage establishment licensed hereunder administers to any other person a massage, lotion, alcohol or oil rub, manipulation procedure, or other service described in Paragraph A above. D. "Outcall massage service" shall mean providing any of the services listed in Paragrap!- A above from or at any place or location other than (1) a fixed place of business licensed as such under this Chapter as a massage establishment. B. "Recognized school of massage° sr, -ll wean a school duly licensed 'and recognized by any state or local government agency in the United States, offering diplomas or certificates in massage therapy, or techniques, which requires for graduation a minimum of two hundred (200) hours of resident study over a course of not less than three (3) months. Section 5.32.040 Compliance. it shall be unlawful and a misdemeanor for any person or firm to engage in, conduct, or carry on within the City, any business as a massage establishment or to act as a Massage Technician without first obtaining and possessing a valid permit issued pursuant to this Chapter, or without complying with all regulations contained in this Chapter. Section 5.32.050 Business license required. Nothing in this Chapter shall constitute a waiver of the requirements of Chapter 5.04 of this Code requiring issuance and possession of a business license. Section 5.32.060 Permit applications: Recxuirements. A-1 applicants for a massage establishment `1ermit or Massage Technician's permit shall file with the Chief. of Polic. )n forms provided by the City, an application containing the following: 1. The full name and present address of the applicant; 2. The full names and addresses of all principals or persons who will own more than five percent (5%) of the massage establishment for which the application is sought; 3. The addresses of residence for the last five (5) years, if different than in Number 1 above, for all applicants and principals; 3- I 4. Physical dascription of the applicant; 5. Current photograph of the applicant, including front and profile, and two sets of fingerprints. 6. The name under which the business will operate if the application is for an establishmeut permit or, if the application is for a Massage Technician's permit, any other names or nicknames under which the person has been known_ 7. Proof of graduation from a recognized school of massage, as defined in this Chapter, if the application is for a Massage Technician's permit. S. written proof that the applicant is at, least eighteen (18) years of age. 9. Any criminal convictions of the applicant during the past ten (10) years. 1o. Any proceedings in Lodi or elsewhere to suspend, revoke, or void a permit for Massage Technician's pe=it or massage establishment permit held by the applicant, including the reasons therefor, whether or not such proceedings resulted in the actual suspension, revocation, or voiding of such license. 5.32.070 Fees. At the time of filing an application for a permit for Massage Technician or massage establishment, the applicant shall pay a fee in accordance with the schedule set from time to time by resolution of the City Council. Such fee shall include but not be limited to all costs reasonably incurred iz. the invest4gation and issuance of such permits. 5.32.080 Investigation by police. A. Prio~ to issuance of a permit for Massage Technician or -4- massage establ.Lahments, the Chief of Police or c._-ignee shall conduct a background investigation of the applicant and the premises where the business is to be conducted. It shall be grounds for denial of a permit if: 1. The proposed premises are not appropriately zoned for such use; 2. The applicant or any person owning five percent (5t) or more of the business has been convicted of any felony or any crime of moral turpitude including but not limited to prostitution, pandering, pimping, lewd conduct, any sex crime requiring registration under Penal Code Section 290, fraud, embezzlement, theft, violation of any law regarding controlled substances, whether such convictions occurred under California law or similar statutes from other jurisdictions. 3. The applicant or any person owning five percent (5tc) or more of the business has had any license or permit to conduct a massage establishment or act as a Massage Technician revoked in Lodi or any other jurisdiction within the past five (5) years. B. The Chief of Police or designee shall also ascertain with the City Planning and Community Development Department whether or not the premises are suitable, proper, and adequate to comply with all applicable zoning and land use ordinances or laws. 5.32.090 Grant or denial. A. Within thirty (30) days of the filing of an application hereunder, the Chief of Police or designee shall review the application, conduct an investigation if required, and either: (1) Issue the permit; or (2) Deny the permit providing written notice of the reasons therefor. 5- B. Denial of a permit shall be appeala..e under the terms and procedures found in Section 5.32.140 of this Chapter. 5.32.100 Permits -non -transferable: Duration of permit, No permit issued under this Chapter, whether for a massage establishment or Massage Technician's permit shall be transferable or assignable in any manner, whether by operation of law, or otherwise. No permit for a massage establishment shall be transferable from location to location or person to person. Permits issued hereunder shall be valid until surrendered or revoked. 5.32.110 Grounds for suspension, revocation or denial. A permit issued under this Chapter for a Massage Techniciran's permit or massage establishment may be denied, suspended or revoked, on any of the following grounds: 1. Failure to meet minimum requirements under this Chapter; 2. Repeated violations of the provisions of this Chapter by the permittee, applicant or principal. For purposes of enforcement, "repeated violations" shall mean two (2) or more violations of this Chapter, whether it resulted in a criminal conviction or r.ot, during any twelve (12) month period as long as the elements of such violation can be proven by a preponderance of credible evidence; 3. A violation by the applicant, permittee or principal of any state law involving prostitution, lewdness, pandering, pimping, any sex crime requiring registration under Penal Code Section 290, fraud, embezzlement, theft, or violation of any controlled substance statute whether under California law or similar law of another State, whether or not such violation resulted in a criminal conviction, as long as the elements of such violation can be proven by a preponderance of the credible evidence; 4. Convi.._ion of any felony. 5.32.120 Authority to suspend license. The chief of Police, designee, or the Hearing Officer shall have authority, under the procedures contained in this Chapter, to suspend the permit of a massage establishment or Massage Technician for a maximum of ten (10) calendar days for violation of the provisions of this ordinance in lieu of revocation. Permittees shall have the right to appeal such suspension pursuant to Section 5.32.140 below. 5.32.130 Notice of intent to denv, revoke. or suspend license: Initial hearing. A. When the Chief of Police or designee denies an application for a permit under this Chapter, or has reasonable cause to believe that a violation of this Chapter by any permittee has occurred, or that any grounds exist for the revocation or suspension of a permit, the applicant/permittee shall be notified of the City's intent to deny, revoke, or suspend such license. B. Notice shall be given in writing by persona, service or by first class mail, to the address of record provided by the applicant/permittee, mailed not less than five (5) business days prior to the proposed effective date of such revocation or suspension. The notice shall contain a proposed effective date of suspension or revocation, a brief summary of the reasons for the action, and inform the holder or applicant of a right to appear before the Chief of Police or designee to show cause why such permit should not be denied, revoked or suspended. The notice shall specify a date, time and location upon which the applicant/permittee shall have the opportunity to be heard. Such hearing shall be r-onducted not more than three (3) business days after the effective date of such revocation or suspension. -7- C. In 6ae case of denial of an applicat.L-.i, the aggrieved party shall file with the Chief of Police within ten (10) days of receiving such denial, a request for hearing under this section. Such hearing shall be held not more than ten (10) days after receipt of such request. D. Following the opportunity for the applicant/permittee to show cause why the permit should not be denied, revoked or suspended, the Chief of Police or designee shall deliver or send by first class mail to the applicant/permittee within twenty four (24) hours, either a recision of the notice of intent to deny, revoke or suspend, or a determination to deny, revoke or suspend the license, along with the reasons therefor. If denied, the decision of the Chief of Police or designee shall become effective upon the date it was mailed or personally delivered. 5.32.140 Anneal. A. Any evplicant/permi.ttee dissatisfied with the action of the Chief of Police or designee under the previous section, may appeal such decision by delivering to the City Clerk not more than ten (10) days after the effective date of such decision, a notice of appeal, along with a brief description of the reasons therefor. The Clerk shall immediately forward such request to the City Manager for handling. B. 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) calendar 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. 8- C. The hearing officer shall, within . _teen (15) days of the conclusion of the hearing, make a written finding and decision, which shall be delivered to the City and the appellant by fist class mail. D. Any party dissatisfied with the decision of the hearing officer may carry the matter forward under the provisions for administrative mandamus (Code of Civil Procedure Section 1094.5) as it now exists or may later be amended. 5.32.150 Inspection of premises. Any massage establishment operating under a permit issued pursuant to this Chapter shall during business hours assure that such premises used for the purposes of a massage establishment shall be readily accessible and open for inspection by law enforcement officers or other employees of the City charged with enforcement or health, safety, or penal laws. 5.32.160 Permit display. A. A recognizable and legible sign shall be posted at the main entrance identifying the establishment as a massage establishment. B. The permit shall be posted in a conspicuous place in such a manner that it can be easily seen by persons entering the establishment. C. Persons acting in the capacity of Massage Technicians shall have the certificate of registration issued them in their possession during the hours they are acting as such in a massage establishment. 5.32.170 Hours of operation. It shall be unlawful for any person to conduct or operate a massage establishment between the hours of 2:00 A.M. and 7:00 A.M. of the same day. 9- 0"1 S.32,180 Outca,- massage. Ir shall be unlawful for any person or firm to provide "outcall" massage, as defined in Section 5.32.030(D), in any hotel, motel, rooming house, or similar place offering short term lodging to the public. As used in this Section, "short term lodging" shall mean the renting of rooms or accommodations to the general public for customary periods of less than 30 -day increments, but does not include hospitals or convalescent facilities. 5.32.190 Severability. If any section, subsection, sentence, clause or phrase of this Chapter is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Chapter. The City Council declares that it would have passed this Chapter, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases had been declared invalid or unconstitutional, and if for any reason this Chapter should be declared invalid or unconstitutional, then the original ordinances shall be in full force and effect. �SCTION 2. All ordinances and parts of ordinances in conflict herewith are repealed insofar as such conflict may exist. SECTION 3. This ordinance shall be published one time in the "Lodi News Sentinel", a daily newspaper of general circulation printed and published in the City of Lodi and shall be in force and take effect thirty days from and after its passage and approval. ft Approved this 15thd& of September, 1993 PHILLIP A. PENNfRO Mayor Attest: 14 .ONIFER `if. PERRIN City Clerk =x.n===vxxcxxxxxx=c==vc===caxcxc=am.=v=c===xc=xxx=e=xxxe=axxaxxxaaaaasa State of California County of San Joaquin, ss. I, Jennifer M. Perrin, City Clerk of the City of Lodi, do hereby certify that Ordinance No. 1585 was introduced at a regular meeting of the City Council of the City of Lodi held September 1, 1993 and was thereafter passed, adopted and ordered to print at a regular meeting of said Council held September 15, 1993 by the following vote: Ayes: Council Members - Davenport, Mann, Sieglock, Snider, and Pennino (Mayor) Noes: Council Members - None Absent: Council Members - None Abstain: Council Members - None I further certify that Ordinance No. 1585 was approved and signed by the Mayor on the date of its passage and the same has been published pursuant to law. Approved as to Form BOBBY W. MCNATT City Attorney 11- l 4UtN1-N1IFEAM'j . PERRIN J City Clerk