HomeMy WebLinkAbout2013-12-03; City Council; 21447; Adoption of Ordinance Regulating Massage Services8
CITY OF CARLSBAD - AGENDA BILL
21.447 ADOPTION OF AN ORDINANCE REPEALING
EXISTING CARLSBAD MUNICIPAL CODE CHAPTER
5.16 AND ENACTING NEW CHAPTER 5.16
REGULATING MASSAGE SERVICES
DEPT. DIRECTOR
MTG. 12/3/13
ADOPTION OF AN ORDINANCE REPEALING
EXISTING CARLSBAD MUNICIPAL CODE CHAPTER
5.16 AND ENACTING NEW CHAPTER 5.16
REGULATING MASSAGE SERVICES
CITY ATTORNEY
DEPT. Clerk
ADOPTION OF AN ORDINANCE REPEALING
EXISTING CARLSBAD MUNICIPAL CODE CHAPTER
5.16 AND ENACTING NEW CHAPTER 5.16
REGULATING MASSAGE SERVICES CITY MANAGER
RECOMMENDED ACTION;
Adopt Ordinance No. CS-234, amending the Carlsbad Municipal Code by repealing existing Chapter 5.16
and exacting new Chapter 5.16 regulating massage services.
ITEM EXPLANATION;
Ordinance No. CS-234 was introduced and first read at the City Council meeting held on November 19,
2013. The second reading allows the City Council to adopt the ordinance that will become effective
thirty days after adoption. The City Clerk will have the ordinance or a summary ofthe ordinance
published within fifteen days, if adopted.
FISCAL IMPACT;
See AB #21,429 on file in the Office ofthe City Clerk.
ENVIRONMENTAL IMPACT;
Pursuant to Public Resources Code section 21065 and CEQA Guidelines section 15738, this action does
not constitute a "project" within the meaning of CEQA and therefore, does not require additional
environmental review.
EXHIBIT;
1. Ordinance No. CS-234.
DEPARTMENT CONTACT: Sherry Freisinger 760-434-2808 Sherry.Freisinger(5)carlsbadca.gov
FOR CITY CLERKS USE ONLY
COUNCIL ACTION: APPROVED CONTINUED TO DATE SPECIFIC •
DENIED • CONTINUED TO DATE UNKNOWN •
CONTINUED • RETURNED TO STAFF •
WITHDRAWN • OTHER-SEE MINUTES •
AMENDED •
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ORDINANCE NO. CS-234
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, REPEALING EXISTING CARLSBAD
MUNICIPAL CODE CHAPTER 5.16 AND ENACTING NEW
CHAPTER 5.16 REGULATING MASSAGE SERVICES
WHEREAS, the City of Carlsbad currently regulates massage services pursuant to
Chapter 5.16 of the Carlsbad Municipal Code through a city licensing process; and
WHEREAS, Division 2, Chapter 10.5 of the California Business & Professions Code
("B&P Code"), as amended, requires that cities allow massage services to be provided
without the need for city licenses, other than a regular business license, as long as the
massage therapists and practitioners have acquired a state certification on a voluntary
basis or that a massage business employs only state certified personnel to perform
massage; and
WHEREAS, the California Massage Therapy Council (CAMTC), established pursuant
to the B&P Code, has the goal of elevating the standing of massage practitioners and
therapists In the community by enacting high standards for state certification and
distinguishing legitimate businesses from those businesses that serve as a front for
prostitution or other illegal activities; and
WHEREAS, the city seeks to conform Its massage regulations to the requirements
of B&P Code Chapter 10.5, as amended, and rather than acknowledging and maintaining
a dual massage regulatory and licensing process, one administered by the city and the
other through state certification, the city will no longer Issue an Individual massage
technician or holistic health practitioner license; all such persons and businesses
providing massage services In Carlsbad shall provide proof of state certification; and
Exhibit 1
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WHEREAS, establishing one regulatory scheme for massage services will create a
consistent and clear process for applicants and will enable consumers to identify
legitimate massage workers, thus protecting the health, safety, and welfare ofthe city.
NOW, THEREFORE, the City Council ofthe City of Carlsbad ordains as follows that:
SECTION 1: That Chapter 5.16 (Massage Business, Massage Technicians and Holistic
Health Practitioners) ofthe Carlsbad Municipal Code Is repealed In Its entirety.
SECTION 2: That a new Chapter 5.16 (Massage Services) ofthe Carlsbad Municipal Code Is
added to read as follows:
Chapter 5.16 MASSAGE SERVICES
Sections;
5.16.010 Purpose and intent.
5.16.020 Definitions.
5.16.030 Authority.
5.16.040 State Certification and City Certificate of Registration required.
5.16.045 Compliance period.
5.16.050 Certified Massage Business - Certificate of Registration required.
5.16.060 Certified Massage Business - Certificate of Registration issuance.
5.16.070 Registration fee.
5.16.080 City business license.
5.16.090 Exemptions from requirement for Certificate of Registration - Business and
Individual.
5.16.100 Health and Safety requirements.
5.16.110 Inspection by City officials and notices of violation.
5.16.120 Display of signs and Certificates of Registrations.
5.16.130 Transfer of Certificate of Registration - Business.
5.16.140 Notification of changes.
5.16.150 Certificate of Registration - Individual Massage Practitioner; non-transferable.
5.16.160 Certificate of Registration expiration and renewal.
5.16.170 Grounds for suspension or revocation of Certificate of Registration - Business.
5.16.180 Grounds for suspension or revocation of Certificate of Registration -
Individual.
5.16.190 Suspension or revocation of Certificate of Registration.
5.16.200 Hearing.
5.16.210 Appeal.
5.16.220 Reapplication after denial.
5.16.230 Public nuisance.
5.16.240 Violations, penalties.
5.16.250 Interpretation.
5.16.260 Constitutionality.
Exhibit 1 y
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5.16.010 Purpose and intent.
It Is the purpose and Intent of the City Council that this chapter relies upon California
Business & Professions Code Chapter 10.5 of Division 2, as It may be amended, to provide
for the orderly and consistent regulation of massage services, to enable consumers to
Identify legitimate massage workers and businesses, and additionally to establish
minimum health and safety standards, thus protecting the public Interest, health, safety
and welfare ofthe city.
5.16.020 Definitions.
For the purpose ofthis chapter, the following words and phrases shall have the following
meanings:
A. "Applicant" shall mean an applicant for a Certificate of Registration - Individual or
Business, and each of the following persons: the managing responsible
officer/employee, a general partner, a limited partner, a shareholder, a sole
proprietor, or any person who has a five (5) percent or greater ownership Interest
In a massage business whether as an Individual, corporate entity, limited partner,
shareholder or sole proprietor.
B. "California Massage Therapy Council" or "CAMTC" means the massage therapy
organization formed pursuant to California Business and Professions Code Section
4600, and following, as amended.
C. "CAMTC Identification Cards" or "Identification Cards" means the cards issued by
CAMTC to a Certified Massage Practitioner.
D. "Certificate Administrator" means the city manager's designee for promulgating
rules, regulations, and requirements consistent with the provisions ofthis section
and all other law in connection with the issuance of a Certificate of Registration.
E. "Certificate of Registration - Business" means a certificate issued by the Certificate
Administrator upon submission of satisfactory evidence as required that a
massage business or sole proprietorship employs or uses only certified massage
therapists or practitioners possessing valid and current State Certifications and has
satisfied all other requirements pursuant to the provisions ofthis chapter.
F. "Certificate of Registration - Individual" means a certificate Issued by the
Certificate Administrator upon submission of satisfactory evidence that a rinassage
practitioner or therapist has a valid and current State Certification and has
satisfied all other requirements pursuant to the provisions ofthis chapter.
Exhibit 1
1 G. "Certified Massage Business" means any business where the only persons
employed or used by that business to provide massage services have current and
valid State Certifications.
H. "Certified Massage Practitioner" means any person holding a current and valid
4 State Certificate Issued by the CAMTC (pursuant to California Business and
Professions Code Sections 4600, and following, as amended), whether as a
massage practitioner or massage therapist, as defined therein.
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"Certified Sole Proprietorship" means any massage business where the Owner Is
the only person employed or used by that business to provide massage services
and the owner has a current and valid unconditional State Certification.
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9 J. "City" means the City of Carlsbad
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" "Massage" means any method of treating the external parts of the body for
-I-I remedial, health, or hygienic purposes for any form of consideration (whether for
the massage, as part of a membership, as part of other services or a product, or
12 otherwise) by means of pressure on or friction against, or stroking, kneading,
rubbing, tapping, pounding, or stimulating the external parts ofthe body, with or
without the aid of any mechanical or electrical apparatus or appliances; or with or
14 without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils,
powders, creams, lotions, ointments, or other similar preparations commonly
15 used In this practice; or by baths. Including but not limited to Turkish, Russian,
Swedish, Japanese, vapor, shower, electric tub, sponge, mineral, fomentation, or
any other type of bath
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L "Owner" or "Operator" means any and all owners of a massage business Including
any of the following persons: the managing responsible officer/employee, a
general partner, a limited partner, a shareholder, a sole proprietor, or any person
who has a five (5) percent or greater ownership interest In a massage business
20 whether as an individual, corporate entity, limited partner, shareholder or sole
proprietor.
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22 M. "Registered Certificate Holder" means a person or business that has been issued a
Certificate of Registration by the Certificate Administrator.
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N. "State Certification," "State Certificate," or "State Certified" means a valid and 24 current certification properly Issued by CAMTC (pursuant to California Business &
25 Professions Code Sections 4600, et seq., as amended) to a Certified Massage
Practitioner,
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Exhibit 1
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5.16.030 Authority.
The Certificate Administrator shall have the power and authority to promulgate rules,
regulations, and requirements consistent with provisions of this chapter and other law In
connection with the Issuance of a Certificate of Registration. The Certificate Administrator
may designate an employee to make decisions and Investigations and take actions under
this chapter.
5.16.040 State Certification and City Certificate of Registration required.
A. It Is unlawful for any Individual to administer massage In exchange for compensation
or consideration of any type within the City unless that Individual Is a CAMTC Certified
Massage Practitioner.
B. It Is unlawful for any massage business within the City to provide or allow any form of
massage to be administered unless all Individuals employed by the massage business
to administer massage, whether as an employee or Independent contractor, are
CAMTC Certified Massage Practitioners.
C. It Is unlawful for any person, association, partnership or corporation to engage In,
conduct or carry on, or permit to be engaged In, conducted or carried on in or upon
any premises within the City, the operation of a massage establishment or to allow
any person to administer massage or function as a Certified Massage Practitioner,
unless a current and valid Certificate of Registration has been Issued for that massage
business pursuant to this chapter.
5.16.045 Compliance period.
A. Within SIX (6) months of the effective date of this ordinance, any business that Is
operating In the City with a current and valid City massage business license and Is
otherwise subject to this chapter, shall submit an application for a Certificate of
Registration pursuant to the provisions ofthis chapter.
B Within six (6) months of the effective date of this ordinance, any person who
possesses a current and valid City license as a holistic health practitioner or massage
technician and Is otherwise subject to this chapter, shall submit an application for a
Certificate of Registration pursuant to the provisions ofthis chapter.
C. Massage businesses, massage technicians and holistic health providers that are
subject to the requirements of this chapter, and that have a current and valid City
massage business license and that have submitted a complete application for
Certificate of Registration In accordance with this chapter may continue to operate
while the Certificate of Registration application is processed.
Exhibit 1
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D. Massage businesses, massage technicians and holistic health providers that are
subject to the requirements ofthis chapter, and that have a current and valid City
massage business license or a current and valid City massage technician or holistic
health practitioner license. Issued pursuant to former Carlsbad Municipal Code
sections 5.16.030 or 5.16.190, on the effective date of this ordinance shall be
entitled to receive a prorated refund of the City massage license fee for the
remaining portion ofthe license period. All requests for refunds shall be made In
writing within six (6) months of the effective date of this ordinance and will be
paid to the licensee within sixty (60) days of the request. All requests for refunds
shall be directed to business licensing.
5.16.050 Certified Massage Business - Certificate of Registration required.
A Certificate of Registration application shall be filed on forms provided by the
Certificate Administrator, submitted under penalty of perjury and shall contain all of
the following Information:
1. State Certification Verification:
a. If a Certified Sole Proprietorship, the Applicant/Owner shall produce a
valid and current State Certification and a valid and current CAMTC
Identification Card.
b. If a Certified Massage Business other than a Certified Sole
Proprietorship, the Applicant/Owners shall produce:
1. A valid and current State Certification; and
2. A valid and current CAMTC Identification Card; and
3. A statement that the Certified Massage Business shall
employ only Certified Massage Practitioners along with
copies of valid and current State Certificates for all
Certified Massage Practitioners employed or who will be
employed by the Massage Business and copies of their
current and valid CAMTC Identification Cards.
c. The Certificate Administrator may require the Applicant/Owner of a
Certified Sole Proprietorship or a Certified Massage Business to
produce a valid and California current driver's license and/or
Identification card issued by a state governmental agency.
d. The Certificate Administrator may require the Certified Massage
Practitioners whom the Applicant/Owner has Identified as employees
to personally appear and produce valid and current State Certificates, a
valid and current California driver's license and/or Identification card.
e. The following Information shall be provided by any Applicant/Owner
who Is not State Certified and who owns or will own five (5) percent or
more ofthe massage business:
6 Exhibit 1
1 1. Acceptable proof that the Applicant/Owner Is at least
2 eighteen years of age.
2. Full, true name, and other names used, date of birth and
3 valid and current California driver's license or
4 identification card issued by a state governmental
agency.
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3. One (1) photograph provided by the applicant. The
6 photograph must be In color, printed on photo quality
paper, 2x2 Inches In size, sized such that the head Is
7 between 1 Inch and 1 3/8 Inches from the bottom ofthe
chin to the top of the head, taken within the last 6
months to reflect the applicant's current appearance,
9 taken In front of a plain white or off-white background,
and taken In full-face view directly facing the camera.
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Current address and all previous resldence(s) for the
11 past ten (10) years. Including dates at each address.
12 5. Business, occupation, and employment history for ten
(10) years preceding the date of current or proposed
13 employment, the Inclusive dates of same; the name and
address of any massage business or other like
establishment owned or operated by any person subject
15 to the background check Including but not limited to
history. If any, with any agency, board, city, county,
territory, or state; and dates of Issuance, denial,
restriction, revocation, or suspension, and the reasons
therefor of any individual or business permit.
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Fingerprints, subject to a fee to cover actual costs, to
19 submit to Department of Justice through LiveScan or
equivalent, and may submit additional fee to cover the
20 actual costs for subsequent arrest notice for renewal
applications, to determine whether the
Applicant/Owner has any ofthe following:
22 I. Convictions for any crime Involving conduct which
22 requires registration under California Penal Code
Section 290 (Sex Offender Registration Act);
Convictions of violation of California Penal Code
25 Section 653.23 (supervision of prostitute);
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Section 647(b) or California Penal Code Section
27 415(3) where the original charge was for violation of
California Penal Code Section 647(b)
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Exhibit 1
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1 Iv. Convictions of crimes designated In Government
Code Section 51032 (massage - grounds for denial of
license), or any crime involving dishonesty, fraud,
3 deceit, violence or moral turpitude;
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4 V. Injunctions for nuisances under Penal Code Section
11225-11235 (red light abatement law);
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vl. Convictions In any other state of any offense which,
5 if committed or attempted In this state, would have
been punishable as one or more of the referenced
7 offenses of this subdivision;
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8 vil. Conspiracy or attempt to commit any such offense
described In subsections I-v ofthis subpart.
2. General Business Information - Applicant/Owner provide all ofthe following:
a. The full true name under which the massage business will be
11 conducted. The mailing address for the present or proposed massage
business.
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b. The present or proposed address where the massage services will be
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-14 c. Complete description of all massage services to be provided.
d. The name and address of any massage business or other like business
owned or operated by any person whose name Is required to be given
16 pursuant to this section.
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e. A description of any other business to be operated on the same
premises, or on adjoining premises, owned or controlled by the
18 Applicant/Owner.
19 f. The name and address of the owner and lessor of the real property. If
any, upon or In which the massage business Is to be conducted.
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3. Corporate Information - Applicant/Owner provide all ofthe following:
2^ a. If the Applicant/Owner Is a corporation, the name of the corporation
22 shall be set forth exactly as shown In its articles of Incorporation or
charter together with the state and date of incorporation and the
23 names and residence addresses of each of its current officers and
directors, and of each stockholder holding more than five (5) percent of
the stock of that corporation, and Its registered agent for receipt of
25 process.
b. If the Applicant/Owner Is a partnership, the application shall set forth
the names and residence address of each of the partners. Including
27 limited partners. Ifthe applicant Is a limited partnership, it shall furnish
a copy of its certificate of limited partnership as filed with the County
2^ Clerk. If one or more of the partners Is a corporation, the provisions of
8 Exhibit 1
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1 this subsection pertaining to corporate applicants shall apply to the
corporate partner.
c. The Applicant/Owner, corporation or partnership shall designate one
3 of Its officers or general partners to act as Its responsible managing
4 officer/employee. Such person shall complete and sign all application
forms required of an Individual Applicant under this chapter. The
5 corporation's or partnership's responsible managing officer must, at all
times, meet all of the requirements set by this chapter or the
corporation or partnership Certificate of Registration - Business shall be
suspended until a responsible managing officer who meets such
requirements Is designated and verified. If no such person Is found
8 within ninety (90) days, the corporation or partnership's Certificate of
Registration Is deemed canceled and a new application for Certificate
of Registration must be filed.
d. If an Applicant/Owner, Operator, corporation, or partner owns 5% or
more of the massage business and Is not State Certified, the Police
Department shall conduct a background check of that Owner,
12 Operator, corporation, or partner, which shall Include the Information
requested In Section 5.16.050(A)(l)(e)(6)(l)-(vil) Inclusive and the name
^3 and address of any massage business or other like business owned or
^4 operated by any person who is subject to the background check
requirement ofthis subdivision.
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4. Authorization for the City of Carlsbad, Its agents and employees, to seek
16 Information and conduct an Investigation Into the truth of the statements
set forth In the application and Into the background of the
17 Applicant/Owner, where authorized by this chapter.
18 5. A certificate of compliance from the City's building official (or other
compliance person as designated by the City Manager) that certifies that
the premises ofthe massage business will meet or does meet all applicable
2Q codes and regulations. The certificate of compliance must be submitted
prior to the application approval.
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6. Zoning consistency check in writing from City. A zoning consistency check
22 does not confer or authorize any entitlement to a use permit or building
permit or similar, which process. If applicable. Is separate from the
23 Certificate of Registration process.
24 7. A signed statement that the Applicant/Owner shall be responsible for the
conduct of all employees or Independent contractors working on the
25 massage premises of the business and that failure to comply with Cal. Bus.
2Q & Prof Code § 4600, and following, with any local, state, or federal law, or
with the provisions of this chapter may result In the suspension or
27 revocation of the Certificate of Registration - Business.
28 8. Payment of a registration fee. If any, as per Section 5.16.070.
9 Exhibit 1
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B, Upon receipt of the application, the Certificate Administrator shall refer the
application for a Certificate of Registration - Business to other City departments for
review and the building official or other designee shall Inspect the massage premises.
If any, proposed to be used as a massage business and shall make a written
recommendation to the Certificate Administrator concerning compliance with the
respective requirements.
C. The Certificate Administrator shall have 60 days, after the submission of all required
Information, to either Issue or deny the application for a Certificate of Registration.
For those applications that are submitted without all the required Information, the
Certificate Administrator, In his or her sole discretion, may either reject the
application outright or request the Applicant/Owner to submit the missing
Information by a date certain. A rejected application, based on failure to submit all
required Information, shall not form the basis for a Hearing Section 5.16.200.
5.16.060 Certified Massage Business - Certificate of Registration issuance.
A. The Certificate Administrator shall Issue a Certificate of Registration - Business to any
Certified Sole Proprietorship that demonstrates all of the following:
1. That the operation, as proposed. If permitted, complies with all applicable
laws. Including, but not limited to, the City's building, zoning, business license,
health regulations, and this chapter.
2. The Owner Is a Certified Massage Practitioner and Is the same person to whom
the CAMTC Issued a valid and current Identification Card.
3. That the Applicant has not made a material misrepresentation In this
application or with respect to any other document or Information required by
the City with respect to this application or for an application for a City massage
permit under applicable law within the last five (5) years.
B. The Certificate Administrator shall issue a Certificate of Registration - Business to a
Certified Massage Business that demonstrates all ofthe following:
1. That the operation, as proposed. If permitted, complies with all applicable
laws. Including, but not limited to, the city's building, zoning, business license,
health regulations, and this chapter.
2. The Owner Is a Certified Massage Practitioner and is the same person io whom
the CAMTC issued a valid and current Identification Card.
3. The massage business employs or uses only Certified Massage Practitioners
whose State Certifications are valid and current are the same persons to
whom CAMTC Issued valid and current Identification Cards.
10 Exhibit 1
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4. That the Applicant has not made a material misrepresentation In this
application or with respect to any other document or Information required by
the City with respect to this application or for an application for a City massage
license under applicable law within the last five (5) years.
5. That the background check for any Applicant/Owner authorized by this
chapter shows that such person has not been required to register under the
provisions of Section 290 of the California Penal Code; within ten (10) years
preceding the application had a conviction In court of competent jurisdiction
for any ofthe crimes identified In Section 5.16.050(A)(l)(e)(6)(l-vll) herein; has
not had an Individual or business permit or license with any agency, board,
city, county, territory, or state, denied, revoked, restricted, or suspended
within the last five (5) years; and has not been subject to an Injunction for
nuisance pursuant to Penal Code Sections 11225-11235 within the last ten (10)
years.
C. In the event of a denial of Issuance of a Certificate of Registration - Business, the
Certificate Administrator will provide notification of and the reasons for denial shall
be set forth In writing and shall either be hand delivered to the Applicant/Owner or
sent by registered or certified mailed. The Applicant/Owner shall, at the
Applicant/Owner's election, have the right to receive a hearing as set forth In Section
5.16.200. If such a hearing is not requested within ten (10) calendar days of the
notice of denial by the Certificate Administrator, the denial shall be final. A request
for hearing Is deemed timely Ifthe Certificate Administrator received said request by
close of business on the tenth (lOth) calendar day.
5.16.070 Registration fee.
A registration fee. If any, shall be set by resolution of the City Council and shall be
required only for background checks for those Applicants/Owners of a Certified Massage
Business who are not State Certified and own five (5) percent or more of the Certified
Massage Business. A registration fee shall not be charged to Certified Massage
Practitioners or as to those State Certified Applicants/Owners applying for a Certificate of
Registration - Business.
5.16.080 City Business License.
All persons shall obtain a business license where required by the City's business license
provisions. The Issuance of a Certificate of Registration (Individual or Business) Is a
condition precedent to the granting of such a City business license. Upon theHssuance of
a Certificate of Registration pursuant to this chapter, the Applicant/Owner shall apply for
and furnish the Information necessary to obtain a City business license as required by the
provisions of this code. No business license shall be Issued until the Certificate of
Registration has been Issued and the business license fee, as provided In this code, has
been paid. A Certified Massage Practitioner employed by a Certified Massage Business Is
not required to obtain a City business license. The business license fee shall be
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commensurate with the business license fee charged to other professionals as established
by this code.
5.16.090 Exemptions from requirement for Certificate of Registration - Business
and Individual.
The provisions of this chapter shall not apply to the following classes of persons or
businesses while engaged In the performance of their duties:
A. Physicians, surgeons, chiropractors, osteopaths, nurses or any physical therapists duly
licensed to practice their respective professions In the State of California and working
within the scope of their licenses.
B. Barbers, cosmetologists, aestheticians, and manicurists who are duly licensed under
the laws ofthe State ofCalifornia while engaging In practices within the scope of their
licenses, except that this provision shall apply solely to the massaging of the neck,
face, hands and feet, and/or scalp ofthe customers, and this exception shall not apply
to full body work or full body massage.
C. Hospitals, nursing homes, sanatoriums, or any other health facilities duly licensed by
the State of California.
D. A trainer of any duly constituted athletic team who administers a massage In the
normal course of training duties and when acting within the scope of their
employment.
E. Trainers of amateur, semi-professional or professional athletes or athletic teams while
engaging In their training responsibilities for and with athletes; and trainers working
In conjunction with a specific athletic event such as an outdoor road or bike race.
F. Health clubs, health spa, gymnasium, or other similar facility designed or Intended for
general physical exercise or conditioning in which the furnishing of massage or
bathing services or facilities is subordinate and incidental, except that the person
performing massage services shall obtain a State Certification and City Certificate of
Registration in conformance with this chapter.
5.16.100 Health and safety requirements.
All premises of Certified Massage Businesses shall be subject to periodic Inspection by the
city at any time and without prior notice for compliance with health, safety, and building
standards and all such establishments shall comply with the following requirements:
A. Health and safety requirements - facility:
1. One artificial white light of not less than forty (40) watts shall be provided In
each room where massage Is being administered.
12 Exhibit 1
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2. The walls shall be clean and painted with an approved washable mold resistant
paint In all rooms where water or steam baths are given.
3. Floors shall be free from any accumulation of dust, dirt, or refuse.
4. All equipment used In the massage operation shall be maintained In a clean
and sanitary condition.
5. Dressing and locker facilities shall be provided for patrons. Security deposit
facilities for the protection of the valuables of the patrons shall also be
available.
6. One front door shall be provided for patron entry to the massage business,
which shall open to an Interior patron reception and waiting area Immediately
Inside the front door. All patrons and any persons other than Individuals
employed or retained by the massage business shall be required to enter and
exit through the front.
7. No part ofthe massage business establishment shall be used for or connected
with any bedroom or sleeping quarters. Nor shall any person sleep in such
massage business establishment except for limited periods Incidental to and
directly related to a massage.
B. Health requirements ~ linens:
1. Towels, sheets, clothes and linens of all types, and Items for personal use of
Operators and patrons shall be clean and freshly laundered and shall not be
used for more than one person.
2. Reuse of such items Is prohibited unless the same has first been laundered.
Such Items shall not be laundered or dried in any massage business unless
such business Is provided with approved laundry facilities for such laundering
and drying.
3. Heavy white paper may be substituted for sheets provided that such paper is
used once for every person and then discarded Into a sanitary receptacle.
C. General health and safety regulations:
1. No person afflicted with an infection or parasitic Infestation transmissible to a
patron shall knowingly provide massage therapy to a patron, or remain on the
premises of a Certified Massage Business while so infected or infested.
2. It Is unlawful for any Certified Massage Practitioner or other person to
massage the genital area of any patron or the breasts of any female patron or
for any Operator of a massage business to allow or permit such massage.
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3. It is unlawful for any Certified Massage Practitioner or other person to be
other than fully clothed In non-transparent clothing at all times that shall not
expose their genitals, pubic area, buttocks, or chest or for any Operator of a
massage business to allow or permit prohibited dress.
4. If during the life of a Certificate of Registration, the Applicant/Owner has any
change In Information concerning the original application or Is different from
what was included in the original application; notification must be made to the
Certificate Administrator, In writing, within ten (10) calendar days of the
change.
5. It Is unlawful for any Certified Massage Business or Registered Certificate
Holder to provide a massage betweenlO:00 p.m. and 7:00 a.m. and the hours
of operation shall be displayed In a conspicuous public place In the reception
area and In any front window clearly visible from outside of the massage
business. Patrons and visitors shall be permitted In the massage business only
during hours of operation.
6. A list of massage services available and the cost of such services shall be
posted In an open and conspicuous public place on the massage premises. The
massage services shall be described In English and may also be described In
such other languages as the business chooses. No massage business Operator
shall permit, and no person employed or retained by the Certified Massage
Business shall offer to perform, any massage services or fees other than those
posted.
7. It Is unlawful for any Certified Massage Business or any Registered Certificate
Holder, Owner, Operator, or responsible managing officer/employee to violate
any requirements ofthis chapter.
5.16.110 Inspection by City officials and notices of violation.
A. The investigating officials of the City, including the San Diego County Health Official,
shall have the right to enter the massage business premises from time to time during
regular business hours, prior to the issuance of a Certification of Registration -
Business and subsequently, for the purpose of making reasonable Inspections to
enforce compliance with this chapter and with building, fire, electrical, plumbing,
and/or health and safety regulations. In the event a Certificate of Registration -
Business has been Issued, It may be suspended or revoked In the manner hereinafter
set forth in this chapter.
B. Whenever a City official makes an inspection of a massage business and finds that any
provision of this chapter has been violated, the Certificate Administrator shall give
notice of such violation by means of a written notice. Any resulting written notice
shall set forth the specific violation or violations found, and notify the Registered
Certificate Holder that failure to comply with any notice Issued In accordance with the
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provisions of this chapter may result In the suspension or revocation of the
Certification of Registration. The Registered Certificate Holder may be Issued a
warning that any future violation of this chapter may result In suspension or
revocation of the Certificate of Registration. The Certificate Administrator may
establish a specific and reasonable period of time for the correction ofthe violation or
violations. No time to correct need be given for health and safety violations or
violations of criminal law.
5.16.120 Display of signs and Certification of Registration.
A recognizable and legible sign shall be posted at the main entrance of each Certified
Massage Business identifying the business as such. The Owner or Operator of each
Certified Massage Business shall display the Certificate of Registration - Business and the
Certificate of Registration - Individual Issued to each Certified Massage Practitioner
employed In or providing massage services to the massage business In an accessible and
conspicuous place on the premises.
5.16.130 Transfer of Certificate of Registration - Business.
A Certificate of Registration - Business shall not be transferable except with the written
approval ofthe Certificate Administrator. A written application for such a transfer shall be
made to the Certificate Administrator. The application for such transfer shall contain the
same Information as required herein for an initial application for a Certification of
Registration as set forth in Section 5.16.050. In the event of denial of such transfer,
notification of and reasons for denial shall be set forth in writing and shall be sent to the
Applicant/Owner by means of registered or certified mall or delivered In person.
5.16.140 Notification of changes.
Every Certified Massage Business Owner or Operator shall report In writing Immediately
to the Certificate Administrator any and all changes of address or ownership of the
Certified Massage Business and any changes of Certified Massage Practitioners employed
In or providing massage services to the massage business.
5.16.150 Certificate of Registration - Individual; non-transferable.
A. It Is unlawful to practice massage for any form of consideration as a principal,
employee, agent or otherwise within the City, unless a person has a current and valid
Certificate of Registration Issued pursuant to this chapter and a CATMC Identification
Card. This section does not apply to Individuals specifically exempted pursuant to the
provisions of this chapter.
B. The Certificate Administrator shall Issue a Certificate of Registration - Individual to any
Certified Massage Practitioner who demonstrates the following:
1. A valid and current State Certification; and
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2. A valid and current CAMTC Identification Card.
C. In the event of a denial of Issuance of a Certificate of Registration - Individual, the
Certificate Administrator will provide notification of and the reasons for denial shall
be set forth In writing and shall either be hand delivered to the Applicant or sent by
registered or certified mailed. The Applicant shall, at the Applicant's election, have the
right to receive a hearing as set forth In Section 5.16.200. If such a hearing is not
requested within ten (10) calendar days of the notice of denial by the Certificate
Administrator, the denial shall be final. A request for hearing Is deemed timely if the
Certificate Administrator received said request by close of business on the tenth
(10th) calendar day.
D. A Certificate of Registration - Individual shall not be transferable.
5.16.160 Certificate of registration expiration and renewal.
A. Certificates of Registration shall be valid for two years from Issuance or as extended
pursuant to this chapter.
B. The Registered Certificate Holder - Business shall apply to the Certificate
Administrator to renew such registration within sixty (60) days prior to expiration and
shall apply to the Certificate Administrator to amend the Certificate of Registration -
Business within thirty (30) days after any change In the registration Information,
Including, but not limited to a change In Certified Massage Business mailing address or
the address of the massage premises. The Certificate Administrator may extend the
Certificate of Registration one time in a renewal period for up to ninety (90) days for
Sole Proprietors who provide timely evidence of a renewal application to CAMTC.
C. The Registered Certificate Holder - Individual shall apply to the Certificate
Administrator to renew such registration within thirty (30) days prior to expiration of
the Certificate of Registration and shall apply to the Certificate Administrator to
amend the Certificate of Registration within thirty (30) days after any change In the
registration information, including, but not limited to a change in the mailing or work
address. The Certificate Administrator may extend the Certificate of Registration one
time during a renewal period for up to ninety (90) for Individuals who provide timely
evidence of a renewal application to CAMTC.
D. If a renewal application and all required information for the renewal is no^ received by
the Certificate Administrator within thirty (30) days after expiration, the Certificate of
Registration shall be deemed expired and no privilege to provide massage services In
Carlsbad shall exist. Renewals shall be processed and Investigated and the
Applicant/Owner Is required to submit that Information which has changed from the
last application or renewal.
E. In the event of a denial of a renewal Certificate of Registration for reasons other than
the Applicant/Owner's failure to submit a complete renewal application with all
required Information, the Certificate Administrator will provide notification of and the
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reasons for denial shall be set forth In writing and shall either be hand delivered to
the Applicant/Owner or sent by registered or certified mailed. The Applicant/Owner
shall, at the Applicant/Owner's election, have the right to receive a hearing as set
forth In Section 5.16.200. If such a hearing Is not requested within ten (10) calendar
days ofthe notice of denial by the Certificate Administrator, the denial shall be final. A
request for hearing is deemed timely if the Certificate Administrator received said
request by close of business on the tenth (lOth) calendar day.
5.16.170 Grounds for suspension or revocation of Certificate of Registration -
Business.
The Certificate Administrator may suspend or revoke a Certificate of Registration Issued
to a Certified Massage Business or Certified Sole Proprietorship upon any ofthe following
grounds:
A. A Registered Certificate Holder Is no longer In possession of a current and valid
State Certification.
B. A non-certifled Owner, Operator, corporation, or partner who owns 5% or more
of the massage business has been convicted of a crime that would have caused
denial ofthe Certificate of Registration.
C. A Registered Certificate Holder has made a material misrepresentation on the
application for Certificate of Registration or renewal.
D. The Registered Certificate Holder has engaged In conduct or operated the
Certified Massage Business or as a Certified Massage Practitioner In a manner
which violates any of the provisions of this chapter, any conditions of the
Certification of Registration, or any of the laws which would have been grounds
for denial ofthe Certification of Registration.
E. The Registered Certificate Holder employs or uses non-certified massage
technicians to perform massage services.
F. Violations of this chapter or of Cal. Bus. & Prof Code sections 4600, and
following, have occurred on the massage business premises.
G. The Registered Certificate Holder has failed to comply with one or more of the
health and safety requirements under this chapter.
H. The Registered Certificate Holder has engaged In fraud, misrepresentation, or
false statements In obtaining or maintaining a Certificate of Registration.
5.16.180 Grounds for suspension or revocation of Certificate of Registration -
Individual.
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The Certificate Administrator may suspend or revoke a Certificate of Registration issued
to an Individual upon any ofthe following grounds:
A. Registered Certificate Holder - Individual Is no longer In possession of a current
and valid State Certification or CAMTC Identification Card;
B. The Registered Certificate Holder - Individual has engaged In fraud,
misrepresentation, or false statements In obtaining or maintaining a Certificate of
Registration.
5.16.190 Suspension or revocation of Certificate of Registration.
In the event that the Certificate Administrator determines that any ofthe grounds
identified In Section 5.16.170 or 5.16.180 exists for the suspension of revocation of a
Certification of Registration, the Certificate Administrator shall notify the Registered
Certificate Holder In writing ofthe intended action and the reasons therefor, and ofthe
right to request a hearing In regard thereto. The action indicated In the written notice
shall be final unless the Registered Certificate Holder files a written request for hearing
with the Certificate Administrator which is received by the Certificate Administrator
within fourteen (14) calendar days ofthe date ofthe notice. A request for hearing Is
deemed timely Ifthe Certificate Administrator received said request by close of business
on the fourteenth (Mth) calendar day. Ifthe request for hearing is timely received, the
Certificate Administrator shall proceed In accord with Section 5.16.200.
5.16.200 Hearing.
Any person who has been denied a Certificate of Registration, for reasons other than
submitting an incomplete Certificate of Registration application or renewal, by the
Certificate Administrator or any Registered Certificate Holder who has received a notice
of intent to suspend or revoke a Certificate of Registration may request a hearing.
A. Upon receipt of a timely written request for hearing, the Certificate Administrator
shall schedule a hearing and shall set forth In writing and send to the applicant or
Registered Certificate Holder, by means of registered mall, certified mall or hand
delivery, notice that within a period of not less than five days nor more than fourteen
days from the date of the posting of the notice, a hearing shall be conducted to
determine the existence of any facts which constitute grounds for denial, suspension
or revocation of a Certificate of Registration. The notice shall Include the date, time
and place ofthe hearing.
B. The hearing shall be conducted by a hearing officer appointed by the city manager.
C. The Applicant/Owner or Registered Certificate Holder may have the assistance of
counsel or may appear by counsel and shall have the right to present evidence. The
hearing need not be conducted according to the rules of evidence. Any relevant
evidence may be admitted and considered by the hearing officer if It Is the sort of
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evidence on which responsible persons are accustomed to rely In the conduct of
serious affairs. Objections to evidence shall be noted and a ruling given by the hearing
officer.
D. In the event that the Applicant/Owner, Registered Certificate Holder or counsel for
Applicant/Owner or Registered Certificate Holder falls to appear at the hearing, the
evidence of the existence of facts which constitute grounds for denial, suspension or
revocation ofthe Certificate of Registration shall be considered un-rebutted.
E. Notice of the decision shall be given In the same manner as for the hearing and shall
specify findings of fact and the reasons for the decision. The hearing officer shall
Inform the party against whom the decision Is rendered of his or her right to appeal to
the city council pursuant to this chapter.
5.16.210 Appeal.
Within ten days after receipt of the decision of the hearing officer, any party affected by
the decision may file with the city clerk a written request for a public hearing before the
city manager. Upon the filing of such a request, the city clerk shall, within fourteen days
thereafter, set the matter for a hearing and shall notify the appellant of the date, time
and place of such hearing at least five days before the hearing date. At the hearing, any
person may present relevant evidence In opposition to, or In support of, appellant's case.
At the conclusion of the hearing, the city manager shall either grant or deny the appeal,
and the decision ofthe city manager shall be final.
5.16.220 Reapplication after denial.
No reapplication for a Certificate of Registration will be accepted within one year after an
application or renewal Is denied or a Certificate of Registration Is revoked, provided that.
If a Certificate of Registration ~ Business Is denied for the sole reason that a Certified
Massage Practitioner does not possess the required state certification, reapplication may
occur when the required certification is obtained.
5.16.230 Public nuisance.
A Certified Massage Business 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 a manner provided by law.
5.16.240 Violations, penalties.
A. Unless otherwise exempted by the provisions of this chapter, every person, whether
acting as an Individual, Owner, employee ofthe Owner, Operator, or employee ofthe
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Operator or whether acting as a mere helper for the Owner, employee, or Operator,
or whether acting as a participant or worker in any way, who gives massages or
conducts a massage business, or who, in connection with the business, gives or
administers, or practices the giving or administering of, massages or baths or any of
the services defined In this chapter, without first obtaining State Certification and a
city Certificate of Registration, or who violates any provision of this chapter, shall be
guilty of an infraction or misdemeanor punishable as provided in Section 1.08.010(b).
B. Any Owner, licensee, manager, or Registered Certificate Holder in charge or in control
of a massage business or Certified Massage Business or Certified Sole Proprietorship
who knowingly employs a person who is not in possession of a valid, unrevoked
Certificate of Registration, or who allows such persons to perform, operate, or
practice within a massage business, shall be guilty of an infraction or misdemeanor
punishable as provided In Section 1.08.010(b).
5.16.250 Interpretation.
This chapter shall be construed liberally in favor of regulation as determined if necessary
and appropriate by the city manager for the public protection and welfare and in order to
accomplish its purpose and intent.
5.16.260 Constitutionality.
If any section, subsection, sentence, clause or phrase ofthis chapter is for any reason held
to be invalid, such decision shall not affect the validity of the remaining portions of this
chapter. The city council declares that it would have adopted the chapter and each
section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any
one or more sections, subsections, sentences, clauses or phrases be declared invalid.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its
adoption; and the city clerk shall certify the adoption ofthis ordinance and cause the full text
of the ordinance or a summary of the ordinance prepared by the City Attorney to be
published at least once in a newspaper of general circulation in the City of Carlsbad within
fifteen days after its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City
Council on the 19™ day of November, 2013, and thereafter,
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PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City
of Carlsbad on the 3*^^ day of December 2013, by the following vote to wit:
AYES:
NOES:
Council Members Hall, Packard, Wood, Blackburn, Douglas.
None.
ABSENT: None.
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APPROVED AS TO FORM AND LEGALITY:
CELIA A. BREWER, City Attorney
ATTEST:
if
BARBARA ENGLESQKPcity Clerk