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HomeMy WebLinkAboutZOA MASSAGE ESTABLISHMENTS 2013 CITY OF PALM DESE T f—i * cb TO 21NE, DEPARTMENT OF COMMUNITY DE E --° - --y- STAFF REPORT REQUEST: APPROVAL OF AMENDMENTS TO THE PALM DESERT MUNCICPAL CODE, CHAPTER 5.87 MASSAGE ESTABLISHMENTS AND MASSAGISTS, CHAPTER 5.90 MASSAGISTS PERMITS OF TITLE 5 BUSINESS TAXES, LICENSES AND REGULATIONS, AND TO TITLE 25 ZONING REGARDING MASSAGE BUSINESS ZONING AND LAND USE RESTRICTIONS SUBMITTED BY: Kevin Swartz, Assistant Planner DATE: March 14, 2013 CONTENTS: 1. Ordinance No. 1256 , Exhibit A and Exhibit B 2. Legal Notice Recommendation Waive further reading and pass Ordinance No. 1256 , to second reading approving amendments to the Palm Desert Municipal Code(PDMC)Titles 5 (Business Taxes, Licenses, and Regulations) and 25 (Zoning) in Chapter 5.87 Establishments and Massagists, Chapter 5.90 Massagists Permits, Chapter 25.10 Agricultural District, and Chapter 25.38 Public Institution District, regarding massage business zoning and land use restrictions. Executive Summary This report recommends that the City Council adopt amendments to the Municipal Code to ensure the City's compliance with the provisions of Senate Bill (SB) 731, Assembly Bill (AB) 619, and SB 1238, regarding massage practitioners and massage businesses. The Planning Department has worked closely with the Police Department and the City Attorney's Office in developing enforceable regulations consistent with the new laws. The new legislation has largely reduced local governments' regulatory authority in licensing, permitting, and zoning massage practitioners and businesses due to the creation of a State controlled agency, the California Massage Therapy Council (CAMTC). Local governments may regulate massage professionals and businesses in the same manner as all other individuals and businesses providing "professional services." The proposed ordinance requires that all massage practitioners be CAMTC-certified and that all business owners either provide proof of CAMTC-certification or submit to a full Ordinance No. 1256 Staff Report Approval of Amendments to Chapters 5.87 and 5.90 and Title 25 Page 2 of 5 March 14, 2013 background check and identity verification. Most importantly, the proposed ordinance establishes clear procedures for legal operation of massage businesses,enforcement, and penalties for violation of the ordinance. Background SB 731, adopted by the State Legislature in 2009, created uniform education standards, a certification process for massage practitioners, and a board called the CAMTC charged with oversight of the educational standards, certification process, and enforcement within the industry. (Business and Professions Code Section 4600 etseq.).The state certification process is voluntary, but state certified massage therapists and practitioners, as well as businesses that employ exclusively state licensed massage employees are not subject to regulation not specifically provided for in the Business and Professions Code. In 2011, the State Legislature passed AB 619 which clarified sections of SB 731. AB 619 provides, in part, that cities may regulate state certified massage practitioners and businesses provided that such regulations are no different than the requirements uniformly applied to all other individuals and businesses providing"professional services,"as defined in subdivision (a) of Section 13401 of the Corporations Code, unless otherwise exempted. Section 13401 of the Corporations Code defines "professional services" as any type of professional service that may be lawfully rendered to a license, certification, or registration authorized by the Business and Professions Code,the Chiropractic Act,or the Osteopathic Act. This definition is so broad that it includes uses such as locksmiths, mortuaries, alarm companies, contractors, and accountants, in addition to many other uses that are quite dissimilar from massage businesses. SB 1238 was adopted by the State Legislature in 2012 to further clarify SB 731 and AB 619. SB 1238 allows cities to adopt ordinances restricting the opening of a new massage establishment in a location in which a massage establishment has been closed due to criminal activity. In the early 2000's, the City participated with Coachella Valley Associations of Governments' (CVAG's) an attempt to establish Valley-wide licensing requirements for massage therapists. The ordinance amendments will assign to CAMTC all therapists licensing, so the City will no longer be part of that Valley-wide program. However, new state laws already mandate that CAMTC licensing is an alternative to City licensing. Requiring therapists to get a City license that is accepted Valley-wide is no longer an option. Staff has kept CVAG advised of the changes that staff is proposing to make. CVAG's staff has voiced no concerns regarding the amendments. GAPlenning\Kevin Swanz\Worcf\Massage Ordinance\Final Massage Council Staff Report 3.19.13.doc Ordinance No. 1256 Staff Report Approval of Amendments to Chapters 5.87 and 5.90 and Title 25 Page 3 of 5 March 14, 2013 Discussion In 2012, staff met with representatives from CAMTC and discussed the State's certification process and enforcement. The CAMTC stated that they require the following of applicants wishing to be certified: • Certified Massage Therapist (CMT) - Generally required to complete at least 500 hours of massage education and training. At least 250 hours shall be at approved massage therapy schools, and the remaining 250 hours required may be secured either from approved schools or from continuing education providers. • Certified Massage Practitioner(CMP) - Generally must complete at least 250 hours of education and training, all at approved schools. • Live Scan fingerprints • A passport photo • A photocopy of a state ID • A fee CAMTC requires the submission of fingerprint images and related information to the Department of Justice and FBI and requests current and subsequent arrest notification services as provided under Section 11105.2 of the Penal Code. CAMTC also requires applicants to self-report convictions, any action against a local permit,or other professional permits or licenses on the CAMTC application. CAMTC also contacts the cities and counties in which the applicant lives and works, presently as well as in the past 10 years. CAMTC also has the authority to investigate an applicant or certificate holder's background. Based on the findings, CAMTC has the authority to deny an application for a certificate or to suspend or revoke a certificate for any violation of its law (California Business and Professions Code Section 4600 et. seq.), including but not limited to subdivision (b) of Section 647 of the Penal Code or any other offense described in CAMTC's law. Chapters 5.87 & 5.90 Amendments Given the CAMTC's rigorous review of applications, a number of California cities have drafted ordinances requiring all massage practitioners to be CAMTC-certified. After discussions with CAMTC representatives and independent review, staff believes that the City should require massage professionals and businesses to be state certified and obtain a certificate of registration from the City. The requirements for obtaining a certificate of registration are found in Exhibit "A", Section 5.87.050 of the proposed ordinance. The ordinance also lays out the grounds for revocation of City registration as well as processes for appeal and reapplication. Any massage establishment that fails to get the certificate of registration as required by the ordinance will be in violation of the ordinance, and subject to any of the enforcement proceedings set forth therein. Among other things, an establishment in violation of Chapters 5.87 and 5.90 is a public nuisance, which the City G\Planning\Kevin Swartz\Word\Massage Ordinance\Final Massage Council Staff Report 3-19.13.doc Ordinance No. 1256 Staff Report Approval of Amendments to Chapters 5.87 and 5.90 and Title 25 Page 4 of 5 March 14, 2013 may seek to abate, including by seeking a temporary restraining order and/or injunction to temporarily or permanently shut down the illegal business. The process for this would entail the City's Code Enforcement Officer issuing a warning notice, then a Notice of Violation and then an administrative citation, and then the City Attorney would have to go to court to seek the TRO/injunction and go through the appropriate judicial process. The City may recover damages from the property owner, as well as from the person conducting or maintaining the nuisance. The health and safety requirements for massage business buildings and operations are substantially similar to existing requirements. Health and safety restrictions can be found in Exhibit "A", Section 5,87.200 and 5.87.210 of the proposed ordinance. Amendments to Chapter 5.90 apply to massage professionals. Massage professionals must also obtain a certificate of registration from the City by providing proof of State certification. Additionally, massage professionals must comply with all health and safety regulations found in Chapter 5.87. Zoning Code Amendments As noted above, AB 619 allows massage businesses in essentially any zone where a professional service is permitted. However, it can be reasonably assumed that if a particular zone requires all "professional services" businesses to obtain a Conditional Use Permit (CUP), as in the P Public/Institutional zone, then a massage business would be required to obtain a CUP prior to operation in that particular zone. In most instances, the Zoning Code already complies with AB 619 and no additional language is necessary. For example, "general offices" and "medical offices" are permitted in the Office Professional zone. "General offices" and "medical offices" would certainly include businesses providing "professional services."Since"professional services"are permitted in the Office Professional zone without a CUP, Certified Massage Businesses must also be permitted in this zone without a CUP. Additionally, "personal services"are permitted in the C1 General Commercial zone, the PC Planned Commercial Districts, and the El Paseo Pedestrian Commercial Overlay zone. Personal services include cosmetologists and barbers, which would be considered "professional services" under AB 619. Since"professional services"are permitted in these zones without a CUP, Certified Massage Businesses must also be permitted by right in these zones. In other instances, the Zoning Code must be amended in order to comply with AB 619. For example, Certified Massage Businesses must be added as a conditional use in Agriculture zones because other "professional services" are allowed by a CUP in that zone (e.g. commercial kennels, cemeteries) and none of the listed "professional services" would G:\Planning\Kevin Swartz\Word\Massage OrdinanceTinal Massage Council Staff Report 3-19-13.doc Ordinance No. 1256 Staff Report Approval of Amendments to Chapters 5.87 and 5.90 and Title 25 Page 5 of 5 March 14, 2013 reasonably incorporate Certified Massage Businesses. Similarly, Certified Massage Businesses must be considered a conditional use in P Public/Institutional zones since other "professional services" are permitted with a CUP, such as hospitals. Fiscal Analysis There is no significant fiscal impact regarding the approval of the amendments to Chapter 5.87 and Chapter 5.90 of Title 5 Business Taxes, Licenses, and Regulations of the Palm Desert Municipal Code. Environmental Review Pursuant to state and local environmental regulations, it has been determined that the regulations encompassed in this Ordinance are not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations,Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Submitted by: Department Head: Kevin Swartz, Assistant Planner rat ri Aylaian, Director of Community D pment 62auWISGibson. Finance Director Approval: 69 n M. Wohlmuth, City Manager G:\Planning\Kevin Swartz\Word\Massage Ordinance\Final Massage Council Staff Report 3.19-13.doc I I y 9 P 9\\, 73-510 FRED WARING DRIVE 4i, h PALM DESERT, CALIFORNIA 92260-2578 TEL: 76o 346—o6n FAX: 760 341-7098 info@palm-deserr.org CITY OF PALM DESERT LEGAL NOTICE NOTICE IS HEREBY GIVEN THAT A PUBLIC HEARING WILL BE HELD BEFORE THE PALM DESERT CITY COUNCIL TO CONSIDER AMENDMENTS TO CHAPTER 5.87 MASSAGE ESTABLISHMENTS AND MASSAGISTS, CHAPTER 5.90 MASSAGISTS PERMITS OF TITLE 5 BUSINESS TAXES, LICENSES AND REGULATIONS, AND TO TITLE 25 ZONING REGARDING MASSAGE BUSINESS ZONING AND LAND USE RESTRICTIONS OF THE PALM DESERT MUNICIPAL CODE. PROJECT LOCATION: Citywide, City of Palm Desert, Council Chambers PUBLIC HEARING: SAID public hearing will be held on Thursday, March 14, 2013, at 4.00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive,. Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed moratorium is available for review in the Department of Community Development at the above address between the hours of 8.00 a.m. and 5.00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing. PUBLISH: Desert Sun Rachelle Klassen, City Clerk March 3, 2013 Palm Desert City Council , 11 BEST BEST & KRIEGER ATTORNEYS AT LAW Memorandum ATTORNEY WORK PRODUCT ATTORNEY-CLIENT PRIVILEGE To: Bob Hargreaves From: Josh Nelson Date: March 12, 2012 Re: Palm Desert: Massage Regulations BACKGROUND The City of Palm Desert ("City") recently received correspondence from a massage therapist who is the Director of Governmental Affairs for the California Massage Therapy Council ("CAMTC"). As discussed below, the CAMTC is a non-profit authorized by the Business and Professions Code to issue voluntary statewide massage therapist certifications. The correspondence alleges that the City's massage ordinance is preempted by the Business and Professions Code. Specifically, the correspondence states that the City cannot require a conditional use permit ("CUP") for massage businesses. You asked me to prepare a short overview of the applicable state laws and how they apply to the City's municipal code. It is important to note that the City is aware that CUPS cannot be required for massage establishments that only use CAMTC-certified therapists. Accordingly, it seems that the complaining party may have misunderstood the City's requirements. ANALYSIS SB 731 &AB 619 SB 731 and AB 619 create a voluntary statewide massage therapist certification. SB 731 was adopted in 2008, and AB 619 took effect on January lst. AB 619 helped clarify a few of the ambiguities in SB 731. Under these laws, therapists that obtain CAMTC certifications are exempt from local massage therapist permitting requirements. (Bus. & Prof. Code, § 4612(a)(1).) In addition, massage establishments that only use CAMTC-certified therapists ("exempt massage establishments") are exempt from local massage establishment permitting requirements. (Bus. & Prof. Code, § 4612(a)(2).) However, all massage businesses, including those only using CAMTC-certified therapists, are subject to local business license requirements. (Bus. & Prof. Code, § 4612(b)(3).) The only limitation on this is that the license fee must be the same as the fee charged to other"[ilndividuals and businesses providing professional services, as defined in subdivision (a) of Section 13401 of the Corporations Code." (Bus. & Prof. Code, § 4612(b)(3).) In addition, local ordinances can require background checks of anyone who owns 5% or more of an exempt massage establishment unless that owner also has a CAMTC massage therapist certification. Lastly, the City can require CAMTC-certified therapists to file a copy of 72500.00001\7341617.I i � 'K BEST BEST & KRIEGER ATTORNEYS AT LAW their certification with the City and/or can require exempt massage establishments to file copies of their therapists' certifications with the City. In addition to these general licensing exemptions, exempt massage establishments are expressly subject to and exempt from certain zoning, building and other similar requirements. These establishments are subject to: (1) land use/zoning/moratoria/CUP requirements as long as these requirements are no different than the requirements that are uniformly applied to other professional services businesses, as defined in subdivision (a) of Section 13401 of the Corporations Code;1 (2) local building codes and facility requirements except (a) additional restroom, shower or other facilities that are not uniformly applicable to other professional or personal service businesses, (b) requirements mandating unlocked doors when there is no staff available to ensure security for clients and staff who are behind closed doors and (c) standards that require windows that provide a view into massage rooms that interfere with the privacy of clients; and (3) reasonable health and safety requirements, including, but not limited to, requirements for cleanliness of massage rooms, towels and linens, and reasonable attire and personal hygiene requirements for persons providing massage services. These establishments are exempt from: (1)massage-specific land use/zoning/moratoria/CUP requirements; (2) local building and facility requirements that are prohibited as noted above; and (3) local background checks and medical examinations for therapists and owners (except as discussed above). Palm Desert Ordinance The City's general massage requirements are contained in Chapter 5.87 of the Palm Desert Municipal Code.2 These provisions generally comply with SB 731 and AB 619. As you noted, the City already exempts CAMTC-certified therapists and exempt establishments from the CUP requirement. (PDMC § 5.87.030.) In fact, BB&K drafted a memo and new ordinance for 1 Under this section,"professional services"are defined as"any type of professional services that may be lawfully rendered only pursuant to a license,certification,or registration authorized by the Business and Professions Code, the Chiropractic Act,or the Osteopathic Act." This is incredibly broad and covers everything from real estate agents to medical professionals. Ordinances can either incorporate this definition or they can indentify all qualifying services that are already regulated by the local agency. 2 Chapter 5.90 contains an alternative regional permitting scheme. - 2 - 72500.00001\7341617.1 'K BEST BEST & KRIEGER ATTORNEYS AT LAW the City shortly after SB 731 was adopted. (Doc Nos. 3903349, 3910323.) However, as AB 619 has clarified a few of the ambiguities in SB 731, the City may wish to update its ordinance. Below is a bullet-point summary of the changes that the City may wish to consider: (1) Sections 5.87.030/5.87.135: These sections provide that exempt massage establishments are not subject to the massage-specific zoning requirements. However, they do not indicate that massage businesses are subject to the land use and zoning requirements that are no different than the requirements that are uniformly applied to other professional services businesses, as defined in subdivision(a)of Section 13401 of the Corporations Code. We could add this. (2) Sections 5.87.060/5.87.135: Section 5.87.135 does not exempt massage establishments from the building requirements contained in Section 5.87.060. This section contains at least one requirement that cannot be applied to exempt establishments. Subsection (f) requires separate restrooms for each sex and mandates minimum restroom facilities depending on the number of patrons. This conflicts with SB 731 and AB 619 unless these requirements also apply to all professional or personal service businesses. (3) Section 5.87.090/5.87.135: Section 5.87.135 does not exempt massage establishments from the operating requirements contained in Section 5.87.090. This section contains at least one requirement that cannot be applied to exempt establishments. Subsection 0) prohibits massage services from being provided in any room with a door capable of being locked. This likely conflicts with the prohibition on mandating unlocked doors when there is no staff available to ensure security for clients and staff who are behind closed doors. (4) The City could also include background checks for anyone who owns 5% or more of an exempt massage establishment unless that owner also has a CAMTC massage therapist certification It is important to note that these is still some uncertainty and ambiguity regarding the enforceability of some other provisions of the City's ordinance. For example, the City's other building and operating requirements apply to exempt massage establishments and are neither expressly permitted nor expressly preempted by SB 731 and AB 619. However, these regulations are most likely permissible. Preemption of local regulations by state law arises in four ways: (1) duplication; (2) contradiction; (3) express field preemption; and (4) implied field preemption. (Sherwin-Williams v. City of Los Angeles (1993) 4 Ca1.4th 893, 897-898.) Duplication exists when local law is "coextensive" with state law. (Sherman-Williams at p. 897- 898.) In the present case, the state massage laws are not co-extensive with these regulations because they simply does not address them. Contradiction exists when it is impossible to comply with both state and local law. (Sherman-Williams at p. 898.) Similar to duplication, - 3 - 72500.00001\7341617.1 BEST BEST & KRIEGER ATTORNEYS AT LAW contradiction is not an issue because local regulations do not contradict state law when state law is silent on an issue. Express field preemption exists when the legislature expressly states that state law preempts the field. (O'Connell v. City of Stockton (2007) 41 CalAth 1061, 1068.) In our case, express field preemption is not an issue. The Legislature expressly permits some local massage regulation. (See Gov. Code, §§ 51030 et seq.) Implied field preemption arises in three situations. (O'Connell, supra, 41 CalAth 1061, 1068.) First, the field is partially covered by state law, and the state law is drafted in terms to indicate a paramount state concern that will not tolerate local action. (Sherwin-Williams at p. 898.) Second, local regulation is preempted if the field is partially covered by state law and the harmful effects of local regulation on transient citizens of the state outweigh any benefits to the locality. Third, a court may determine implied field preemption exists if the subject matter of regulation is so fully and completely covered by state law as to indicate it is a matter of statewide concern. In the present case, SB 731 and AB 619 most likely do not preempt all local regulation of massage businesses. First, as discussed, they expressly permit some local regulation. Second, the field is not fully occupied. In fact, these laws are limited to (1) licensing and (2) exempting CAMTC-licensees from specified local regulations. The implication of this is that local authority is preempted only where explicitly described in the legislation and cities are free to exercise their traditional role of regulating massage businesses in all other areas. As a result, the City's other operating and building regulations should be permissible. CONCLUSION In conclusion, the City's ordinance generally complies with SB 731 and AB 619. However, the City may wish to make a few minor edits to its massage regulations. Please let me know if I can prepare a draft ordinance. - 4 - 72500.00001\73416 l 7.1 ORDINANCE NO. 1256 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM w DESERT AMENDING CHAPTERS 5.87, 5.90, 25.04, 25.10, AND 25.38 OF THE PALM DESERT MUNICIPAL CODE REGARDING MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS WHEREAS, the City of Palm Desert ("City") is authorized by the California Constitution and Government Code Section 51030 et seq., to regulate massage businesses by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of massage businesses; and WHEREAS, massage businesses and other specified personal or professional services businesses are businesses which involve significant intimate contact between persons which create opportunities for acts of prostitution and other unlawful sexual activity to occur; and WHEREAS, Chapter 5.87 and 5.90 of the Palm Desert Municipal Code currently regulate massage establishments and massage therapists to reduce the risk of illicit activity; and WHEREAS, in 2009, the Legislature passed Senate Bill 731 (Business & Professions Code Section 4600 et seq.) amended in 2011 by Assembly Bill 619, amended in 2012 by Senate Bill 1238, which in combination created a state-organized non-profit organization, the California Massage Therapy Council ("CAMTC"), that has regulatory authority over the certification of massage therapists and practitioners throughout the State of California; and WHEREAS, SB 731, AB 619, and SB 1238 impose new limitations on the authority of local jurisdictions to enact or enforce regulations applicable to CAMTC- certified individuals and massage establishments employing only those individuals and pre-empting the application of certain land use, zoning and facility requirements on such massage establishments while preserving local jurisdictions' authority to adopt and enforce certain business licensing and reasonable health and safety requirements for massage establishments and massage professionals; and WHEREAS, the City wishes to amend the Palm Desert Municipal Code to ensure that the City regulates massage therapists, massage establishments and other specified professional services businesses in compliance with the provisions of SB 731, AB 619, and SB 1238. ORDINANCE NO. 1256 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS: SECTION 1. Chapter 5.87 is hereby amended to read in full as shown in Exhibit «B „ SECTION 2. Chapter 5.90 is hereby amended to read in full as shown in Exhibit SECTION 3. Section 25.04.171 of Chapter 25.04 (Definitions) of the Palm Desert Municipal Code is hereby added as follows: "Certified Massage Business(es) shall be defined by Palm Desert Municipal Code Section 5.87.030." SECTION 4. Section 25.10.030 is hereby amended to include: "H. Certified Massage Businesses." SECTION 5. Section 25.38.030 is hereby amended to include: "S. Certified Massage Businesses." SECTION 6. If any section, subsection, clause or phrase of this Ordinance or any part thereof is for any reason held to be invalid, unconstitutional, or unenforceable by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of the Ordinance. The City Council declares that it would have passed each section, subsection, paragraph, sentence, clause, or phrase thereof, irrespective of the fact that nay one or more section, subsection, sentence, clause or phrase would be declared invalid, unconstitutional or unenforceable. SECTION 7. Pursuant to state and local environmental regulations, it has been determined that the regulations encompassed in this Ordinance are not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 8. The City Clerk of the City of Palm Desert, California, is hereby directed to publish this Ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption. 2 ORDINANCE NO. 1256 PASSED, APPROVED AND ADOPTED by the City Council of the City of Palm Desert, California, at its regular meeting held on the I I th day of Apr i I , 2013, by the following vote, to wit: AYES: BENSON, TANNER, WEBER, and HARNIK NOES: NONE ABSENT: SPIEGEL ABSTAIN: NONE r c JQN C. HARNIK, YOR ATTEST: RACH151 LE D. KLASS N, CITY CLE CITY OF PALM DESERT, CALIFORNIA 3 ORDINANCE NO. 1256 Exhibit "A" Chapter 5.87 MASSAGE BUSINESSES 5.87.010 Title This article shall be known as the "massage businesses law of the City of Palm Desert." 5.87.020 Authority This article is enacted pursuant to Chapter 6 Part 1 of Division 1 of Title 5 of the Government Code of the state (commencing with Section 51030) with recognition of the limitations imposed by Chapter 10.5 of Division 2 of the Business and Professions Code of the state (commencing with Section 4600). 5.87.030 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: "Applicant" shall mean an applicant for a Certificate of Registration- 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 percent(5%)or greater ownership interest in a massage business whether as an individual, corporate entity, limited partner, shareholder or sole proprietor. "California Massage Therapy Council" means the massage therapy organization formed pursuant to California Business and Professions Code Section 4600, and following, as amended, and referred to as CAMTC herein. "Certificate of Registration—Business" means a certificate issued by the city manager 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 of this Chapter. "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. "Certified Massage Practitioner"means any person holding a current and valid 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. "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. 72500.00762\7542239.9 j ORDINANCE NO. 1256 Exhibit "A" "City manager" means the city manager of the City of Palm Desert, or designee. "Communication device" means any video or other type of camera device that is either free standing or is temporarily or permanently mounted to a fixed surface indoors or outdoors. "Massage" means any method of treating the external parts of the body for 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 otherwise)by means of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, or stimulating the external parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances; or with or without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly 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. "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 percent (5%) or greater ownership interest in a massage business whether as an individual, corporate entity, limited partner, shareholder or sole proprietor. "Registered Certificate Holder" means a person or business that has been issued a Certificate of Registration by the city manager. "State Certification" or"State Certificate" means a valid and current certification properly issued by CAMTC pursuant to California Business & Professions Code Section 4600, and following, as amended. 5.87.040 State Certification and City Registration Required A. Within one year of passage of this ordinance, it shall be unlawful for any individual to practice massage for compensation within the City unless that individual is a Certified Massage Practitioner and further, it shall be unlawful for any business to provide massage services within the City unless all individuals employed by the massage business to perform massage,whether as an employee or independent contractor, are Certified Massage Practitioners. B. Within one year of passage of this ordinance, unless issued a current and valid Certificate of Registration issued pursuant to this Chapter, it shall be 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 Certified Massage Business or the function of a Certified Massage Practitioner. 5.87.050 Certified Massage Business—Certificate of Registration Required. 72500.00762\7542239.9 2 ORDINANCE NO. 1256 Exhibit"A" A. Any person desiring to own or operate a business to provide massage services within the City shall file a registration application on forms provided by the city manager, submitted under penalty of perjury and containing 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 California Massage Therapy Council ("CAMTC") issued 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 issued 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 Massage Practitioners employed or who will be employed by the Massage Business and copies of their current and valid CAMTC issued identification cards. C. The city manager may require the owner/applicant of a Certified Sole Proprietorship or a Certified Massage Business to produce a valid and current driver's license and/or identification card issued by a state or federal governmental agency or other photographic identification bearing a bona fide seal by a foreign government; and further may require the Massage Practitioners whom the owner/applicant has identified as employees to personally appear and produce valid and current State Certificates, a valid and current driver's license and/or identification card issued by a state or federal governmental agency or other photographic identification bearing a bona fide seal by a foreign government. d. The following information shall be provided by any owner/applicant who is not state certified and owns five percent(5%)or more of the business: (1) Acceptable proof that the employee is at least eighteen(18) years of age. (2) Full, true name, and other names used, date of birth and valid and current driver's license and/or identification card issued by a state or federal governmental agency or other photographic identification bearing a bona fide seal by a foreign government. (3) Two(2)photographs to be taken by the Police Department. (4) Current address and previous two(2) residence addresses including dates at each address. 72500.00762\7542239.9 3 ORDINANCE NO. 1256 Exhibit "A" (5) Business, occupation, and employment history for ten(10) years preceding the date of current or proposed 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 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 therefore of any individual or business permit; and (6) Fingerprints, subject to a fee to cover actual costs, to submit to Department of Justice through LiveScan or equivalent, and may submit additional fee to cover the actual costs for subsequent arrest notice for renewal applications, to determine whether the applicant has any of the following: i. All convictions for any crime involving conduct which requires registration under California Penal Code Section 290 (Sex Offender Registration Act); ii. Convictions of violations of California Penal Code Sections 266i (pandering), 315 (keeping or residing in house of ill-fame), 316 (keeping disorderly house), 318 (prevailing upon person to visit place for gambling or prostitution), 647(b) (prostitution); 653.23 (supervision of prostitute); iii. Convictions of any felony offense involving the sale of a controlled substance specified in Section 1104, 11055, 11056, 11057, or 11058 of the California Health and Safety Code; iv. Convictions of crimes designated in California Government Code Section 51032(massage - grounds for denial of license), or any crime involving dishonesty,fraud, deceit, violence or moral turpitude; V. All injunctions for nuisances under California Penal Code Section 11225- 11235 (red light abatement law); vi. Convictions in any other state of any offense which, if committed or attempted in this state, would have been punishable as one(1)or more of the referenced offenses of this subdivision; vii. Conspiracy or attempt to commit any such offense described in subsections i—vi of this subpart. (7) If the City finds that a non-certified owner's or operator's background check results in a finding that the City determines is relevant to owning or operating a massage establishment, the City may regulate that establishment in any manner it deems proper that is in accordance with the law. 2. General Business Information 72500.00762\7542239.9 4 ORDINANCE NO. 1256 Exhibit "A" a. The name, current permanent residential address and telephone number of the applicant. b. The business name, proposed business address, and telephone number of the massage business. C. The name and permanent address of the owner of the property upon which the applicant intends to locate the massage establishment. d. In the event the applicant is not the owner of record of the real property upon which the massage establishment is or will be located, the application must be accompanied by a notarized statement from the owner of record of the real property acknowledging that a massage establishment is or will be located on the property. In addition, the applicant must furnish a copy of the lease or rental agreement pertaining to the premises in which the massage establishment will be located. e. The applicant shall provide the name and permanent address of the owner of the property at which the applicant intends to locate the massage business. If the property owner is a corporation, the application shall include the name of the corporation 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, and its registered agent for receipt of process. The applicant shall provide the address of the corporation itself, if different than the address of the massage business. If the property owner is a partnership, the application shall set forth the name and residence address of each partner, including limited partners. If the property owner is a limited partnership, it shall further a copy of its certificate of limited partnership as filed with the County Clerk. If one (1) or more of the partners is a corporation, the provisions of this subsection pertaining to corporate applicants shall apply to the corporate partner. f. The name(s)of person(s)having the management or supervision of the applicant's business. g. Such other identification and information necessary to discover the truth of the matters hereinbefore specified as required to be set forth in the application. h. A description of all services to be provided by the applicant's proposed massage business. i. Name and address of any massage business or other like business owned or operated by any person whose name is required to be given pursuant to this Section. 3. Corporate Information a. If the applicant is a corporation,the application shall include the name of the corporation exactly as shown in its articles of incorporation or charter together with the state 72500.00762\7542239.9 5 ORDINANCE NO. 1,256 Exhibit "A" 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, and its registered agent for receipt of process. The applicant shall provide the address of the corporation itself, if different than the address of the massage business. b. If the applicant is a partnership, the application shall set forth the name and residence address of each partner, including limited partners. If the applicant is a limited partnership. It shall further a copy of its certificate of limited partnership as filed with the County Clerk. If one (1)or more of the partners is a corporation, the provisions of this subsection pertaining to corporate applicants shall apply to the corporate partner. C. The applicant, corporation or partnership shall designate one (1) of its officers or general partners to act as its responsible managing officer/employee. Such person shall complete and sign all application forms required of an individual applicant under this Chapter. The 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 shall be suspended until a responsible managing officer who meets such requirements is designated. If no such person is found within ninety(90) calendar days, the corporation or partnership Certificate of Registration is deemed canceled and a new application for registration must be filed. 4. Authorization for the City of Palm Desert, its agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant, where authorized by this Chapter. 5. A certificate of compliance from the health officer for the City of Palm Desert(as designated by the city manager) that certifies that the premises of the massage business will meet all applicable codes and regulations must be submitted prior to application approval. 6. Zoning consistency check in writing from City's Community Development Department. A zoning consistency check does not confer or authorize any entitlement to a use permit or building permit or similar, which process, if applicable, is separate from the Certificate of Registration process. 7. A signed statement that the owner/applicant shall be responsible for the conduct of all employees or independent contractors working on the premises of the business and that failure to comply with Cal. Bus. &Prof. Code 4600, and following, with any local, state, or federal law, or with the provisions of this Chapter may result in the revocation of the City-issued Certificate of Registration. 8. Payment of a registration fee, if any, as per Section 5.87.080. B. Upon receipt of the application, the city manager shall refer the application to other City departments that shall inspect the premises, if any, proposed to be used as a massage business and shall make a written recommendation to the city manager concerning compliance with the respective requirements. 72500.00762\7542239.9 6 ORDINANCE NO. 1256 Exhibit"A" C. The city manager or authorized representative shall have up to sixty(60) calendar days after the submission of all required information to complete his/her investigation. 5.87.060 Certified Massage Business—Conditional Use Permit Any massage business applying to operate in a location where a massage establishment has been closed due to criminal activity will require approval of a conditional use permit per Chapter 25.72 of the zoning ordinance. For purposes of this section, "location" means a specific building, as identified by its unique street address, including all suites or subparts. 5.87.070 Certified Massage Business- Registration Issuance. A. The city manager shall issue a Certificate of Registration— Business to any Certified Sole Proprietorship that demonstrates all of the following: 1. That the operation, as proposed by the applicant, if permitted, complies with all applicable laws, including, but not limited to, the City's building, zoning, business license, and health regulations. 2. The owner is the only person employed or used by that business to provide massage services. 3. The owner holds a valid and current State Certificate issued pursuant to Chapter 10.5 of the California Business &Professions Code and that the owner/applicant is the same person to whom the CAMTC issued a valid and current State Certificate and identification card. 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 permit under applicable law within the last five(5) years. B. The city manager shall issue a Certificate of Registration-Business to a Certified Massage Businesses that demonstrates all of the following: 1. That the operation, as proposed by the applicant, if permitted, complies with all applicable laws, including, but not limited to,the City's building, zoning, business license, and health regulations. 2. The owner holds a valid and current State Certificate issued pursuant to Chapter 10.5 of the California Business &Professions Code and that the owner/applicant is the same person to whom the CAMTC issued a valid and current state certificate and identification card. 3. The massage business employs or uses only State Certified Massage Practitioners whose certifications are valid and current and that owners of the State Certificates are the same persons to whom CAMTC issued valid and current identification cards. 72500.00762\7542239.9 7 ORDINANCE NO. 1256 Exhibit"A" 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 permit 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 five(5) years preceding the application had a conviction in court of competent jurisdiction for any of the crimes identified in Section 18A.5A.l(d)(6)(ii—vii)) 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 under Penal Code Section 11225-11235 within the last five (5) years. C. If the application is denied, the city manager shall promptly give the applicant written notice thereof and the findings for such denial. The applicant may submit a written request for reconsideration with the city manager within ten (10) calendar days of the date of the city manager's written notice of denial. The request for reconsideration shall be accompanied by a fifty dollar filing fee, or other amount as established from time to time by city council resolution. Upon receipt of the written request,the city manager shall reconsider the application together with any new records, documents, or information presented by the applicant, or discovered by the City, within the time and manner provided in Section 5.87.050. The city manager's decision on the reconsideration shall be final. 5.87.080 Registration Fee A registration fee, if any, shall be set by resolution of the City Council and shall be required only for background check for those applicants/owners of a Certified Massage Business who are not State Certified and own five percent(5%) or more of the Certified Massage Business. A registration fee shall not be charged to State Certified Practitioners or State Certified owners/applicants. 5.87.090 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 business license. Upon the issuance of a Certificate of Registration pursuant to this Chapter, the applicant shall apply for and furnish the information necessary to obtain a 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. The business license fee shall be no higher than the lowest fee that is applied to other individuals and businesses providing professional services, as defined in subdivision(a) of Section 13401 of the California Corporations Code. 5.87.100 Notification of Changes. 72500,00762\7542239.9 8 ORDINANCE NO. .1256 Exhibit"A" Every massage business owner or operator shall report in writing to the city manager any and all changes of address or ownership of the massage business, and any changes or transfers of massage practitioners employed in the business or practice within thirty (30)calendar days of said change(s). 5.87.110 Certificate of Registration Expiration and Renewal. A. Certificates of Registration shall be valid as follows: 1. Massage Businesses - for two (2) years from issuance or as extended pursuant to this Chapter; 2. For Sole Proprietors - for two (2) years from issuance or as extended pursuant to this Chapter. B. The City Certificate of Registration shall be renewed in accordance with the expiration schedule set forth in this section. C. The Registered Certificate Holder- Business shall apply to the City to renew such registration within sixty(60) calendar days prior to expiration and shall apply to the City to amend the Certificate of Registration within thirty (30) calendar days after any change in the registration information including but not limited to a change in work address. The city manager may extend the Certificate of Registration one (1)time in a renewal period for up to ninety(90) calendar days for Sole Proprietors who provide timely evidence of a renewal application to CAMTC. D. If a renewal application and all required information for the renewal is not received by the city manager within thirty(30) calendar days after expiration, the Certificate of Registration shall be deemed expired and no privilege to provide massage in Palm Desert shall exist. Renewals shall be processed and investigated and the applicant is required to submit that information which has changed from the last application or renewal. 5.87.120 Revocation or Suspension of Certificate of Registration A. Certificates of Registration issued to a Certified Massage Business or Certified Sole Proprietorship shall be suspended or revoked by the city manager upon any of the following grounds: 1. A Registered Certificate Holder is no longer in possession of a current and valid State Certification. 2. A non-state certified owner, operator, corporation, or partner who owns five percent (5%) or more of the massage business has been convicted of a crime that would have caused denial of the Certificate of Registration. 3. A Registered Certificate Holder has made a material misrepresentation on the application for Certificate of Registration or renewal. 72500.00762\7542239.9 9 Exhibit "A" ORDINANCE NO. 1256 4. The Registered Certificate Holder has engaged in conduct or operated the Certified Massage Business or as a Massage Practitioner in a manner which violates any of the provisions of this Chapter, any conditions of the permit, or any of the laws which would have been grounds for denial of the permit. 5. The Registered Certificate Holder employs or uses non-certified massage technicians to perform massage services. 6. Violations of this Chapter or of California Business & Professions Code Section 4600, and following, have occurred on the business premises. 7. The Registered Certificate Holder has failed to comply with one (1) or more of the health and safety requirements under this Chapter. 8. The Registered Certificate Holder has engaged in fraud, misrepresentation, or false statements in obtaining or maintaining a Certificate of Registration. B. The term of suspension shall be not more than sixty (60) calendar days. 5.87.130 Suspension or Revocation Notice. A. Notice shall be given to the Registered Certificate Holder stating the grounds for proposed revocation or suspension. Notice shall be given by personal service or certified or registered mail to the address shown on the last application or renewal. If reasonable attempts to otherwise serve are not successful, service may be provided by first class mail. B. If the Certificate of Registration is suspended or revoked, the Certificate of Registration shall be surrendered. C. Service shall be deemed complete when personal service is made, when the certified letter is delivered, or when the decision is mailed by first class mail. 5.87.140 Appeal from Revocation,Suspension. The decision of the city manager to revoke or suspend a Certificate of Registration may be appealed by the Registered Certificate Holder in accordance with the following procedures: A. All appeals shall be in writing and shall contain the following information: (a) name(s)of the person filing the appeal (appellants); (b) a brief statement in ordinary and concise language of the grounds for the appeal; and(c)the signatures of all parties named as appellants and their mailing addresses. B. A filing fee for an appeal of one hundred dollars, or other amount as established from time to time by city council resolution, must be paid to the City at or prior to the time of the filing of the appeal. 72500.00762\7542239.9 10 ORDINANCE NO. 1256 Exhibit"A" C. Any appeal filed that fails to provide all of the information required by this section and the appropriate filing fee shall be deemed incomplete. D. A complete and proper appeal of the revocation or suspension of a Certificate of Registration shall be filed with the city clerk within ten(10) calendar days of service of the letter revoking or suspending the Certificate of Registration or within ten (10) calendar days of any other action that is the subject of appeal. E. After receiving the written appeal, the city clerk shall schedule a hearing before the city council. The city council may refer the matter to a hearing officer. The city council may decide the matter based on the recommendations and findings of the hearing officer, if it so chooses. F. The decision of the city council shall be final. 5.87.150 Reapplication after Denial or Revocation. No reapplication for a Certificate of Registration will be accepted within two (2) years 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 massage practitioner does not possess the required training, reapplication may occur when the required training is completed. 5.87.160 Inspection by City and Notices of Violation. A. The City shall have the right to enter the premises from time to time during regular business hours prior to the issuance of a Certificate of Registration 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 has been issued, it may be revoked or suspended in the manner set forth in this Chapter. It is unlawful for any massage business owner/operator to fail to allow City inspection officers into the premises or hinder such officer in any manner. During an inspection, enforcement officers may also verify the identity of all employees. B. Whenever City officials make an inspection of a massage business and finds that any provision of this Chapter has been violated,he or she shall give notice of such violation by means of an inspection report or other written notice. In any such notification,the investigating person shall: 1. Set forth the specific violation or violations found, and shall notify the Registered Certificate Holder that failure to comply with any notice issued in accordance with the provisions of this Chapter may result in the revocation or suspension of the Certificate of Registration. 2. 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, or the City officials may establish a specific and reasonable period of time for the correction of 72500.00762\7542239.9 11 ORDINANCE NO. 1256 Exhibit "A" the violation or violations. No time to correct need be given for health and safety violations or violations of criminal law. 3. The Registered Certificate Holder and operator shall take immediate action to correct violations and City officials may re-inspect the business for compliance. 5.87.170 Transfer of Massage Business Certificate of Registration. A Certificate of Registration- Business shall not be transferable except with the written approval of the city manager. A written application for such a transfer shall be made to the city manager. The application for such transfer shall contain the same information as required herein for an initial application for a Certificate of Registration as set forth in Section 5.87.050. 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 by means of registered or certified mail or delivered in person. 5.87.180 Special events notification required. When extra massage therapists are required for a special event at or organized by a Certified Massage Business or Certified Sole Practitioner, the owner, manager, or operator of the business must supply the city with a list of Certified Massage Practitioners who will be working at the event, copies of their Certificates of Registration, and any other information the city may reasonably require, not less than two weeks before the date of the event. 5.87.190 Exemptions. 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, acupuncturists, nurses or 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, estheticians, and manicurists who are duly licensed under the laws of the State of California 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 of the customers, and this exception shall not apply to full body work or full body massage. Further,this provision shall apply solely to businesses that generate less than fifty percent of their gross revenue from full body work or full body massage. C. Hospitals,nursing homes, sanatoriums,or other any health facilities duly licensed by the State of California. D. Accredited junior colleges and colleges or universities whose coaches and trainers are acting within the scope of their employment. 72500.00762\7542239.9 12 ORDINANCE NO. 1256 Exhibit"A" 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 full body work or full body massage generates less than fifty percent of the business's gross revenue. However, persons performing massage services shall obtain a State Certification and City Certificate of Registration in conformance with this Chapter. 5.87.200 Health and Safety Requirements—Building requirements. All premises of Certified Massage Businesses shall be subject to periodic inspection by the City for compliance with health, safety, and building standards and all such establishments shall comply with, in addition to zoning and building codes, the following requirements: A. A recognizable and readable sign shall be posted at the main entrance of each massage business identifying the business as such business; provided, that all such signs shall comply with the sign regulations of the city. B. The owner or operator of each massage business shall display the Certificate of Registration issued to the business and to each massage practitioner employed in the business in an accessible and conspicuous place on the premises. Certified Massage Practitioners shall have his or her original State Certificate at his or her place of business and his or her identification card in his or her possession while providing massage services. C. Maximum occupancy load, fire exits, aisles and fire equipment shall be regulated, designed and provided in accordance with the fire department and building department regulations and standards. D. All building openings, entries,windows, etc., shall be located, covered or screened in such a manner as to prevent a view from the outside of the building into dressing rooms, treatment rooms,restrooms, and other areas where patrons of the business may not be fully dressed. E. Lighting in parking lots shall be in compliance with Chapter 24.16 of the municipal code. F. Construction of rooms used for toilets,baths and showers shall be made waterproof with approved waterproofed materials and shall be installed in accordance with the city building code. Plumbing fixtures shall be installed in accordance with the city plumbing code: 1. Steam rooms and shower compartments shall have waterproof floors,walls and ceilings approved by the city; 72500.00762\7542239.9 13 ORDINANCE NO. 1256 Exhibit"A" 2. Floors of wet and dry heat rooms shall be adequately pitched to one or more floor drains properly connected to the sewer. Dry heat rooms with wooden floors need not be provided with pitched floors and floor drains; 3. A source of hot water must be available within the immediate vicinity of dry and wet heat rooms to facilitate cleaning. G. Hot and cold running water under pressure from a potable source shall be provided to all washbasins, bathtubs, showers, and similar facilities. Each water basin shall be provided with soap or detergent and single-service towels placed in permanently installed dispensers. A trash receptacle shall be provided in each room where such facilities are located. H. Provide minimum lighting in accordance with the Uniform Building Code, and in addition, at least one artificial light of not less than forty watts shall be provided in each enclosed room where massage is being administered. 1. Floors shall be free from any accumulation of dust, dirt, or refuse. J. One(1) 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. 5.87.210 Health and Safety Requirements—Operating requirements. All premises of Certified Massage Businesses shall be subject to periodic inspection by the City for compliance with health, safety, and building standards and all such establishments shall comply with the following requirements: A. 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. B. A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises. No massage business operator shall permit, and no person employed or retained by the Certified Massage Business shall offer to perform, any services or fees other than those posted. C. A record shall be maintained that includes the date and time of each massage, the name and address of the patron,the name of the person administering such massage, and the type of massage given. Such records will be made available upon request based on good cause, for inspection by the city manager or police chief, or their designees. The information contained in such records shall be confidential. D. The premises shall have adequate equipment for disinfecting and sterilizing non- disposable instruments and materials used in administering massages. Such non-disposable instruments and materials shall be disinfected after each use on each patron. 72500.00762\7542239.9 14 ORDINANCE NO. 1256 Exhibit "A" E. It shall be 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. F. No loudspeakers or sound equipment shall be used by a massage establishment for amplification of sound to a level discernible by the public beyond the walls of the building in which use is conducted. G. No person shall give, or assist in the giving of, any massage or other body treatment to any other person under the age of eighteen years, unless the parent or guardian of the minor person has consented thereto in writing. H. No person owning, operating, or managing massage establishment may employ or use any person under eighteen years of age without written parental consent. 1. Maintain walls, ceilings, floor, pools, showers, bathtubs, water basins, toilets, wet and dry heat rooms, steam or vapor rooms and cabinets and all other facilities in good repair and in a clean and sanitary condition. Showers, water basins, toilets, wet and dry heat rooms, steam or vapor rooms, and cabinets and compartments shall be thoroughly cleaned at least once each day the massage business is in operation. Bathtubs shall be thoroughly cleaned after each use. J. Provide clean and sanitary towels, sheets and linens for each person. No common usage of sheets, towels and linens shall be permitted. Towels, sheets and linens shall be provided in sufficient quantity and shall not be used by more than one person unless such towels, sheets and linens have been re-laundered. Separate closed cabinets or containers shall be provided for the storage of clean and soiled towels, sheets and linens, and such cabinets or containers shall be plainly marked"clean linen" and"soiled linen." K. Cover pad used on massage tables in workmanlike manner with durable, washable plastic or other waterproof material. L. Unlock all exterior doors from interior side during business hours. In the instance that the exterior door is the only door in the massage establishment, it may be locked, in the interests of privacy and safety, if all persons inside the massage establishment are either giving or receiving massages. M. No massage establishment granted a Certificate of Registration or license under the provisions of this chapter shall place,publish or distribute, or cause to be placed,published or distributed, any advertisement, picture or statement which is known, or through the exercise of reasonable care should be known,to be false, deceptive or misleading in order to induce any person to purchase or utilize any professional massage service. N. It is unlawful for any massage service to be carried on within any cubicle, room, booth, or any area within a permitted establishment which is fitted with a door capable of being locked, with the exception of certain massage establishments envisioned under Subsection L., 72500.00762\7542239.9 15 ORDINANCE NO. 1256 Exhibit"A" above. Toilets and cubicles used solely for the application of liquid and vapor baths shall be clearly marked as to purpose on the exterior door or curtain of said cubicle, room, or booth. Nothing contained herein shall be construed to eliminate other requirements of statute, ordinance or municipal code concerning the maintenance of premises, nor to preclude authorized inspection thereof, whenever such inspection is deemed necessary by the code enforcement, the police or health departments. 0. No permitted establishment shall operate as a school of massage, or operate in the same location, or use the same facilities as that of a school of massage except as otherwise may be provided by law. P. No person operating a massage establishment shall permit communication devices to be installed or used in any manner on the premises so as to interfere with or hinder inspections by code or law enforcement officers. Q. No person or persons shall be allowed to live or sleep inside the massage establishment at any time. R. 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. S. It shall be 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. T. If during the life of a Certificate of Registration,the applicant has any change in information concerning the original application,notification must be made to the city manager, in writing, within thirty(30) calendar days of the change. U. It shall be unlawful for any Certified Massage Business or any Registered Certificate Holder,owner, operator, or responsible managing officer/employee to violate any of the mandatory requirements of this Chapter applicable to massage business. 5.87.220 Violation—Penalties. A. Unless otherwise exempted by the provisions of this Chapter, every person, whether acting as an individual, owner, employee of the owner, operator, or employee of the operators 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 shall violate any provision of this Chapter, shall be guilty of an infraction. 72500.00762\7542239.9 16 ORDINANCE NO. 1256 Exhibit "A" 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 such a place of business, shall be guilty of an infraction. C. Anyone found to have violated any provision set forth herein shall be guilty of an infraction and anyone found to have violated any provision set forth herein more than three(3) times in a twelve(12) month period shall be guilty of a misdemeanor; however the City Attorney may reduce the penalty to an infraction. The penalties for such violations are as set forth in Chapter 1.12 of the Municipal Code. 5.87.230 Other remedies. The provisions of Section 5.87.220 are not to be construed as exclusive remedies and, in the event of violation, the city may pursue any proceedings or remedies otherwise provided by law. 5.87.240 Conducting a business as a nuisance. Any 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. 72500.00762\7542239.9 17 OR [NANCE NO. 1.256 Exhibit "B" Chapter 5.90 MASSAGE PRACTITIONERS 5.90.010 Title This article shall be known as the"massage practitioner law of the city of Palm Desert." 5.90.020 Authority This article is enacted pursuant to Chapter 6 Part 1 of Division 1 of Title 5 of the Government Code of the state (commencing with Section 51030) with recognition of the limitations imposed by Chapter 10.5 of Division 2 of the Business and Professions Code of the state (commencing with Section 4600). 5.90.030 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: "Applicant" shall mean an applicant for a Certificate of Registration— Individual. "California Massage Therapy Council" means the massage therapy organization formed pursuant to California Business and Professions Code Section 4600, and following, as amended, and referred to as CAMTC herein. "Certificate of Registration— Individual" means a certificate issued by the city manager upon submission of satisfactory evidence that a massage practitioner or therapist has a valid and current State Certification and has satisfied all other requirements pursuant to the provisions of this Chapter. "Certificate of Registration—Business" means a certificate issued by the city manager 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 of this Chapter. "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. "Certified Massage Practitioner"means any person holding a current and valid 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. "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. 72500.00762\7545019.6 1 ORDINANCE NO. 1256 Exhibit"B" "City manager" means the city manager of the City of Palm Desert, or designee. "Massage" means any method of treating the external parts of the body for remedial, health, or hygienic purposes for any fonn of consideration(whether for the massage, as part of a membership, as part of other services or a product, or otherwise) by means of pressure on or friction against, or stroking,kneading, rubbing, tapping, pounding, or stimulating the external parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances; or with or without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly 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. "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 percent(5%) or greater ownership interest in a massage business whether as an individual, corporate entity, limited partner, shareholder or sole proprietor. "Registered Certificate Holder"means a person or business that has been issued a Certificate of Registration by the city manager. "State Certification" or"State Certificate" means a valid and current certification properly issued by CAMTC pursuant to California Business &Professions Code Section 4600, and following, as amended. 5.90.040 State Certification and City Registration Required A. Within one year of passage of this ordinance, it shall be unlawful for any individual to practice massage for compensation within the City unless that individual is a Certified Massage Practitioner and further, it shall be unlawful for any business to provide massage services within the City unless all individuals employed by the massage business to perform massage, whether as an employee or independent contractor, are Certified Massage Practitioners. B. Within one year of passage of this ordinance,unless issued a current and valid Certificate of Registration issued pursuant to this Chapter, it shall be 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 Certified Massage Business or the function of a Certified Massage Practitioner. 5.90.050 Certificates of Registration; Non-Transferable A. It shall be 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. This section expressly applies to all Massage Practitioners working as individuals unless specifically exempted pursuant to the provisions of Section 5.87.190. 72500.00762\7545019.6 2 ORDINANCE NO. 1256 Exhibit"B" B. The city manager shall issue a Certificate of Registration to any Certified Massage Practitioner who demonstrates the following: 1. A valid and current State Certification; and 2. A valid and current California Massage Therapy Council ("CAMTC") issued identification card. C. If the application is denied, the city manager shall promptly give the applicant written notice thereof and the findings for such denial. The applicant may submit a written request for reconsideration with the city manager within ten (10) calendar days of the date of the city manager's written notice of denial. The request for reconsideration shall be accompanied by a fifty dollar filing fee, or other amount as established from time to time by city council resolution. Upon receipt of the written request, the city manager shall reconsider the application together with any new records, documents, or information presented by the applicant, or discovered by the City, within the time and manner provided in Section 5.87.050. The city manager's decision on the reconsideration shall be final. D. A Certificate of Registration- Individual shall not be transferable. 5.90.060 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 business license. Upon the issuance of a Certificate of Registration pursuant to this Chapter, the applicant shall apply for and furnish the information necessary to obtain a 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. The business license fee shall be commensurate with the business license fee charged to other professionals as established by this Code. 5.90.070 Certificate of Registration Expiration and Renewal A. Certificates of Registration- Individual shall be valid for two(2) years from issuance or as extended pursuant to this Chapter. B. The City Certificate of Registration shall be renewed in accordance with the expiration schedule set forth in this section. C. The Registered Certificate Holder- Individual shall apply to the City to renew such registration within thirty(30) calendar days prior to expiration of the Certificate of Registration and shall apply to the City to amend the Certificate of Registration within thirty(30) calendar days after any change in the registration information including but not limited to a change in the work address. The city manager may extend the Certificate of Registration one(1) time during a renewal period for up to ninety(90) calendar days for individuals who provide 72500.00762\7545019.6 3 ORWINANCR NO. 1256 Exhibit`B" timely evidence of a renewal application to CAMTC. Renewals shall be processed and investigated and the applicant is required to submit that information which has changed from the last application or renewal. D. If a renewal application and all required information for the renewal is not received by the city manager within thirty (30) calendar days after expiration, the Certificate of Registration shall be deemed expired and no privilege to provide massage in the City shall exist. 5.90.080 Revocation or Suspension of Certificate of Registration A. The city manager shall revoke or suspend a Certificate of Registration issued to individuals upon the following grounds: 1. The Registered Certificate Holder is no longer in possession of a current and valid State Certification or CAMTC issued identification card; 2. The Registered Certificate Holder has engaged in fraud, misrepresentation, or false statements in obtaining or maintaining a Certificate of Registration. B. The term of suspension of any permit shall be not more than sixty(60) calendar days. 5.90.090 Suspension or Revocation Notice Notice of suspension or revocation of a Certificate of Registration—Individual shall made in compliance with Section 5.87.130. 5.90.100 Appeal from Revocation,Suspension The decision of the city manager to revoke or suspend a Certificate of Registration may be appealed by the Registered Certificate Holder in accordance with the procedures set forth in Section 5.87.140. 5.90.110 Reapplication After Denial No reapplication for a Certificate of Registration will be accepted within one(1) year after an application or renewal is denied or a Certificate of Registration is revoked. 5.90.120 Compliance with Chapter 5.87 Certified Massage Practitioners shall comply with all applicable health and safety regulations found in Sections 5.87.200 and 5.87.210. 5.90.130 Violation—Penalties. A. Unless otherwise exempted by the provisions of this Chapter, every person, whether acting as an individual,owner, employee of the owner, operator, or employee of the 72500.00762\7545019.6 4 ORDINANCE NO. 1256 Exhibit`B" operators 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 shall violate any provision of this Chapter, shall be guilty of an infraction. 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 such a place of business, shall be guilty of an infraction. C. Anyone found to have violated any provision set forth herein shall be guilty of an infraction and anyone found to have violated any provision set forth herein more than three (3) times in a twelve (12) month period shall be guilty of a misdemeanor; however the City Attorney may reduce the penalty to an infraction. The penalties for such violations are as set forth in Chapter 1.12 of the Municipal Code. 5.90.140 Other remedies. The provisions of Section 5.90.130 are not to be construed as exclusive remedies and, in the event of violation, the city may pursue any proceedings or remedies otherwise provided by law. 72500.(H)762\7545019.6 5 ORDINANCE NO. z5t, AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM f DESERT AMENDING CHAPTERS 5.87, 5.90, 25.04, 25.10, AND 25.3$ OF THE PALM DESERT MUNICIPAL CODE REGARDING MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS WHEREAS, the City of Palm Desert ("City") is authorized by the California Constitution and Government Code Section 51030 et seq., to regulate massage businesses by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of massage businesses; and WHEREAS, massage businesses and other specified personal or professional services businesses are businesses which involve significant intimate contact between persons which create opportunities for acts of prostitution and other unlawful sexual activity to occur; and WHEREAS, Chapter 5.87 and 5.90 of the Palm Desert Municipal Code currently regulate massage establishments and massage therapists to reduce the risk of illicit activity; and WHEREAS, in 2009, the Legislature passed Senate Bill 731 (Business & Professions Code Section 4600 et seq.) amended in 2011 by Assembly Bill 619, amended in 2012 by Senate Bill 1238, which in combination created a state-organized non-profit organization, the California Massage Therapy Council ("CAMTC"), that has regulatory authority over the certification of massage therapists and practitioners throughout the State of California; and WHEREAS, SB 731, AB 619, and SB 1238 impose new limitations on the authority of local jurisdictions to enact or enforce regulations applicable to CAMTC- certified individuals and massage establishments employing only those individuals and pre-empting the application of certain land use, zoning and facility requirements on such massage establishments while preserving local jurisdictions' authority to adopt and enforce certain business licensing and reasonable health and safety requirements for massage establishments and massage professionals; and WHEREAS, the City wishes to amend the Palm Desert Municipal Code to ensure that the City regulates massage therapists, massage establishments and other specified professional services businesses in compliance with the provisions of SB 731, AB 619, and SB 1238. r ORDINANCE NO. 1256 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER AS FOLLOWS: SECTION 1. Chapter 5.87 is hereby amended to read in full as shown in Exhibit SECTION 2. Chapter 5.90 is hereby amended to read in full as shown in Exhibit SECTION 3. Section 25.04.171 of Chapter 25.04 (Definitions) of the Palm Desert Municipal Code is hereby added as follows: "Certified Massage Business(es) shall be defined by Palm Desert Municipal Code Section 5.87.030." SECTION 4. Section 25.10.030 is hereby amended to include: "H. Certified Massage Businesses." SECTION 5. Section 25.38.030 is hereby amended to include: "S. Certified Massage Businesses." SECTION 6. If any section, subsection, clause or phrase of this Ordinance or any part thereof is for any reason held to be invalid, unconstitutional, or unenforceable by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of the Ordinance. The City Council declares that it would have passed each section, subsection, paragraph, sentence, clause, or phrase thereof, irrespective of the fact that nay one or more section, subsection, sentence, clause or phrase would be declared invalid, unconstitutional or unenforceable. SECTION 7. Pursuant to state and local environmental regulations, it has been determined that the regulations encompassed in this Ordinance are not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 8. The City Clerk of the City of Palm Desert, California, is hereby directed to publish this Ordinance in the Desert Sun, a newspaper of general circulation, published and circulated in the City of Palm Desert, California, and shall be in full force and effective thirty (30) days after its adoption. f 2 ORDINANCE NO. 125E PASSED, APPROVED AND ADOPTED by the City Council of the City of Palm f Desert, California, at its regular meeting held on the I I th day of Ap-r i 1 , 2013, by the following vote, to wit: AYES: BENSON, TANNER, WEBER, and HARNIK NOES: NONE, ABSENT: SPIEGEL ABSTAIN: NONE. JAN C. HARNIK, MAYOR r ATTEST: RACHELLE D. KLASS N, CITY cLERJk CITY OF PALM DESERT, CALIFORNIA 3 ORDINANCE NO. 1256 Exhibit"A" Chapter 5.87 MASSAGE BUSINESSES y^ 5.87.010 Title 's This article shall be known as the "massage businesses law of the City of Palm Desert." 5.87.020 Authority This article is enacted pursuant to Chapter 6 Part 1 of Division 1 of Title 5 of the Government Code of the state (commencing with Section 51030) with recognition of the limitations imposed by Chapter 10.5 of Division 2 of the Business and Professions Code of the state (commencing with Section 4600). 5.87.030 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: "Applicant" shall mean an applicant for a Certificate of Registration- 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 percent(5%) or greater ownership interest in a massage business whether as an individual, corporate entity, limited partner, shareholder or sole proprietor. "California Massage Therapy Council" means the massage therapy organization formed pursuant to California Business and Professions Code Section 4600, and following, as amended, and referred to as CAMTC herein. "Certificate of Registration—Business"means a certificate issued by the city manager upon submission of satisfactory evidence as required that a massage business or sole proprietorship employs or rises only certified massage therapists or practitioners possessing valid and current State Certifications and has satisfied all other requirements pursuant to the provisions of this Chapter. "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. "Certified Massage Practitioner" means any person holding a current and valid 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. "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. 72500.00762\7542239.9 1 ORDINANCE NO. 1256 Exhibit "A" "City manager" means the city manager of the City of Palm Desert, or designee. "Communication device" means any video or other type of camera device that is either free standing or is temporarily or permanently mounted to a fixed surface indoors or outdoors. "Massage" means any method of treating the external pants of the body for 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 otherwise) by means of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, or stimulating the external parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances; or with or without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly 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. "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 percent (5%) or greater ownership interest in a massage business whether as an individual, corporate entity, limited partner, shareholder or sole proprietor. "Registered Certificate Holder" means a person or business that has been issued a Certificate of Registration by the city manager. "State Certification" or"State Certificate" means a valid and current certification properly issued by CAMTC pursuant to California Business & Professions Code Section 4600, and following, as amended. 5.87.040 State Certification and City Registration Required A. Within one year of passage of this ordinance, it shall be unlawful for any individual to practice massage for compensation within the City unless that individual is a Certified Massage Practitioner and further, it shall be unlawful for any business to provide massage services within the City unless all individuals employed by the massage business to perform massage,whether as an employee or independent contractor, are Certified Massage Practitioners. B. Within one year of passage of this ordinance, unless issued a current and valid Certificate of Registration issued pursuant to this Chapter, it shall be 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 Certified Massage Business or the function of a Certified Massage Practitioner. 5.87.050 Certified Massage Business—Certificate of Registration Required. 72500.00762\7542239.9 2 ORDINANCE" No. 1256 Exhibit "A" A. Any person desiring to own or operate a business to provide massage services within the City shall file a registration application on forms provided by the city manager, submitted under penalty of perjury and containing 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 California Massage Therapy Council ("CAMTC") issued 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 issued 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 Massage Practitioners employed or who will be employed by the Massage Business and copies of their current and valid CAMTC issued identification cards. C. The city manager may require the owner/applicant of a Certified Sole Proprietorship or a Certified Massage Business to produce a valid and current driver's license and/or identification card issued by a state or federal governmental agency or other photographic identification bearing a bona fide seal by a foreign government; and further may require the Massage Practitioners whom the owner/applicant has identified as employees to personally appear and produce valid and current State Certificates, a valid and current driver's license and/or identification card issued by a state or federal governmental agency or other photographic identification bearing a bona fide seal by a foreign government. d. The following information shall be provided by any owner/applicant who is not state certified and owns five percent(5%)or more of the business: (1) Acceptable proof that the employee is at least eighteen(18) years of age. (2) Full, true name, and other names used,date of birth and valid and current driver's license and/or identification card issued by a state or federal governmental agency or other photographic identification bearing a bona fide seal by a foreign government. (3) Two (2)photographs to be taken by the Police Department. (4) Current address and previous two(2) residence addresses including dates at each address. 72500.00762\7542239.9 3 ORDINANCE NO. 1256 Exhibit "A" (5) Business, occupation, and employment history for ten(10) years preceding the date of current or proposed 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 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 therefore of any individual or business permit; and (6) Fingerprints, subject to a fee to cover actual costs, to submit to Department of Justice through LiveScan or equivalent, and may submit additional fee to cover the actual costs for subsequent arrest notice for renewal applications, to determine whether the applicant has any of the following: i. All convictions for any crime involving conduct which requires registration under California Penal Code Section 290 (Sex Offender Registration Act); ii. Convictions of violations of California Penal Code Sections 266i (pandering), 315 (keeping or residing in house of ill-fame), 316 (keeping disorderly house), 318 (prevailing upon person to visit place for gambling or prostitution), 647(b) (prostitution); 653.23 (supervision of prostitute); iii. Convictions of any felony offense involving the sale of a controlled substance specified in Section 1104, 11055, 11056, 11057, or 11058 of the California Health and Safety Code; iv. Convictions of crimes designated in California Government Code Section 51032(massage- grounds for denial of license), or any crime involving dishonesty, fraud, deceit, violence or moral turpitude; V. All injunctions for nuisances under California Penal Code Section 11225- 11235 (red light abatement law); vi. Convictions in any other state of any offense which, if committed or attempted in this state, would have been punishable as one(1) or more of the referenced offenses of this subdivision; vii. Conspiracy or attempt to commit any such offense described in subsections i—vi of this subpart. (7) If the City finds that a non-certified owner's or operator's background check results in a finding that the City determines is relevant to owning or operating a massage establishment, the City may regulate that establishment in any manner it deems proper that is in accordance with the law. 2. General Business Information 72500.00762\7542239.9 4 ORDINANCE NO. 1256 Exhibit "A" a. The name, current permanent residential address and telephone number of the applicant. b. The business name, proposed business address, and telephone number of the massage business. C. The name and permanent address of the owner of the property upon which the applicant intends to locate the-massage establishment. d. In the event the applicant is not the owner of record of the real property upon which the massage establishment is or will be located, the application must be accompanied by a notarized statement from the owner of record of the real property acknowledging that a massage establishment is or will be located on the property. In addition, the applicant must furnish a copy of the lease or rental agreement pertaining to the premises in which the massage establishment will be located. e. The applicant shall provide the name and permanent address of the owner of the property at which the applicant intends to locate the massage business. If the property owner is a corporation, the application shall include the name of the corporation 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, and its registered agent for receipt of process. The applicant shall provide the address of the corporation itself, if different than the address of the massage business. If the property owner is a partnership, the application shall set forth the name and residence address of each partner, including limited partners. If the property owner is a limited partnership, it shall further a copy of its certificate of limited partnership as filed with the County Clerk. If one(1) or more of the partners is a corporation, the provisions of this subsection pertaining to corporate applicants shall apply to the corporate partner. f. The name(s) of person(s)having the management or supervision of the applicant's business. g. Such other identification and information necessary to discover the truth of the matters hereinbefore specified as required to be set forth in the application. h. A description of all services to be provided by the applicant's proposed massage business. L Name and address of any massage business or other like business owned or operated by any person whose name is required to be given pursuant to this Section. 3. Corporate Information a. If the applicant is a corporation,the application shall include the name of the corporation exactly as shown in its articles of incorporation or charter together with the state 72500.00762\7542239.9 5 ORDINANCE NO. 1256 Exhibit "A" 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, and its registered agent for receipt of process. The applicant shall provide the address of the corporation itself, if different than the address of the massage business. b. If the applicant is a partnership, the application shall set forth the name and residence address of each partner, including limited partners. If the applicant is a limited partnership. It shall further a copy of its certificate of limited partnership as filed with the County Clerk. If one (1)or more of the partners is a corporation, the provisions of this subsection pertaining to corporate applicants shall apply to the corporate partner. C. The applicant, corporation or partnership shall designate one (1) of its officers or general partners to act as its responsible managing officer/employee. Such person shall complete and sign all application forms required of an individual applicant under this Chapter. The 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 shall be suspended until a responsible managing officer who meets such requirements is designated. If no such person is found within ninety (90) calendar days, the corporation or partnership Certificate of Registration is deemed canceled and a new application for registration must be filed. 4. Authorization for the City of Palm Desert, its agents and employees, to seek information and conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant, where authorized by this Chapter. 5. A certificate of compliance from the health officer for the City of Palm Desert(as designated by the city manager)that certifies that the premises of the massage business will meet all applicable codes and regulations must be submitted prior to application approval. 6. Zoning consistency check in writing from City's Community Development Department. A zoning consistency check does not confer or authorize any entitlement to a use permit or building permit or similar, which process, if applicable, is separate from the Certificate of Registration process. 7. A signed statement that the owner/applicant shall be responsible for the conduct of all employees or independent contractors working on the premises of the business and that failure to comply with Cal. Bus. &Prof. Code 4600, and following, with any local, state, or federal law, or with the provisions of this Chapter may result in the revocation of the City-issued Certificate of Registration. 8. Payment of a registration fee, if any, as per Section 5.87.080. B. Upon receipt of the application, the city manager shall refer the application to other City departments that shall inspect the premises, if any, proposed to be used as a massage business and shall make a written recommendation to the city manager concerning compliance with the respective requirements. 72500.00762\7542239.9 6 ORDINANCE No. 1256 Exhibit"A" C. The city manager or authorized representative shall have up to sixty (60) calendar days after the submission of all required information to complete his/her investigation. 5.87.060 Certified Massage Business—Conditional Use Permit Any massage business applying to operate in a location where a massage establishment has been closed due to criminal activity will require approval of a conditional use permit per Chapter 25.72 of the zoning ordinance. For purposes of this section, "location"means a specific building, as identified by its unique street address, including all suites or subparts. 5.87.070 Certified Massage Business- Registration Issuance. A. The city manager shall issue a Certificate of Registration— Business to any Certified Sole Proprietorship that demonstrates all of the following: 1. That the operation, as proposed by the applicant, if permitted, complies with all applicable laws, including, but not limited to, the City's building, zoning, business license, and health regulations. 2. The owner is the only person employed or used by that business to provide massage services. 3. The owner holds a valid and current State Certificate issued pursuant to Chapter 10.5 of the California Business &Professions Code and that the owner/applicant is the same person to whom the CAMTC issued a valid and current State Certificate and identification card. 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 permit under applicable law within the last five(5) years. B. The city manager shall issue a Certificate of Registration- Business to a Certified Massage Businesses that demonstrates all of the following: 1. That the operation, as proposed by the applicant, if permitted,complies with all applicable laws, including,but not limited to, the City's building, zoning,business license, and health regulations. 2. The owner holds a valid and current State Certificate issued pursuant to Chapter 10.5 of the California Business &Professions Code and that the owner/applicant is the same person to whom the CAMTC issued a valid and current state certificate and identification card. 3. The massage business employs or uses only State Certified Massage Practitioners whose certifications are valid and current and that owners of the State Certificates are the same persons to whom CAMTC issued valid and current identification cards. 72500,00762\7542239.9 7 ORDINANCE NO. 1256 Exhibit"A" 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 permit 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 five (5) years preceding the application had a conviction in court of competent jurisdiction for any of the crimes identified in Section 18A.5A.l(d)(6)(ii—vii)) 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 under Penal Code Section 11225-11235 within the last five (5) years. C. If the application is denied, the city manager shall promptly give the applicant written notice thereof and the findings for such denial. The applicant may submit a written request for reconsideration with the city manager within ten (10)calendar days of the date of the city manager's written notice of denial. The request for reconsideration shall be accompanied by a fifty dollar filing fee, or other amount as established from time to time by city council resolution. Upon receipt of the written request, the city manager shall reconsider the application together with any new records, documents, or information presented by the applicant, or discovered by the City, within the time and manner provided in Section 5.87.050. The city manager's decision on the reconsideration shall be final. 5.87.080 Registration Fee A registration fee, if any, shall be set by resolution of the City Council and shall be required only for background check for those applicants/owners of a Certified Massage Business who are not State Certified and own five percent(5%) or more of the Certified Massage Business. A registration fee shall not be charged to State Certified Practitioners or State Certified owners/applicants. 5.87.090 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 business license. Upon the issuance of a Certificate of Registration pursuant to this Chapter, the applicant shall apply for and furnish the information necessary to obtain a 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. The business license fee shall be no higher than the lowest fee that is applied to other individuals and businesses providing professional services, as defined in subdivision(a) of Section 13401 of the California Corporations Code. 5.87.100 Notification of Changes. 72500.00762\7542239.9 8 ORDINANCE NO. .1256 Exhibit"A" Every massage business owner or operator shall report in writing to the city manager any and all changes of address or ownership of the massage business, and any changes or transfers of massage practitioners employed in the business or practice within thirty (30)calendar days of said change(s). 5.87.110 Certificate of Registration Expiration and Renewal. A. Certificates of Registration shall be valid as follows: 1. Massage Businesses - for two (2) years from issuance or as extended pursuant to this Chapter; 2. For Sole Proprietors - for two (2) years from issuance or as extended pursuant to this Chapter. B. The City Certificate of Registration shall be renewed in accordance with the expiration schedule set forth in this section. C. The Registered Certificate Holder- Business shall apply to the City to renew such registration within sixty(60)calendar days prior to expiration and shall apply to the City to amend the Certificate of Registration within thirty (30)calendar days after any change in the registration information including but not limited to a change in work address. The city manager may extend the Certificate of Registration one (1) time in a renewal period for up to ninety(90) calendar days for Sole Proprietors who provide timely evidence of a renewal application to CAMTC. D. If a renewal application and all required information for the renewal is not received by the city manager within thirty(30)calendar days after expiration, the Certificate of Registration shall be deemed expired and no privilege to provide massage in Palm Desert shall exist. Renewals shall be processed and investigated and the applicant is required to submit that information which has changed from the last application or renewal. 5.87.120 Revocation or Suspension of Certificate of Registration A. Certificates of Registration issued to a Certified Massage Business or Certified Sole Proprietorship shall be suspended or revoked by the city manager upon any of the following grounds: 1. A Registered Certificate Holder is no longer in possession of a current and valid State Certification. 2. A non-state certified owner, operator, corporation, or partner who owns five percent(5%) or more of the massage business has been convicted of a crime that would have caused denial of the Certificate of Registration. 3. A Registered Certificate Holder has made a material misrepresentation on the application for Certificate of Registration or renewal. 72500.00762\7542239.9 9 Exhibit "A" ORDINANCE No. .1256 4. The Registered Certificate Holder has engaged in conduct or operated the Certified Massage Business or as a Massage Practitioner in a manner which violates any of the provisions of this Chapter, any conditions of the permit, or any of the laws which would have been grounds for denial of the permit. 5. The Registered Certificate Holder employs or uses non-certified massage technicians to perform massage services. 6. Violations of this Chapter or of California Business & Professions Code Section 4600, and following, have occurred on the business premises. 7. The Registered Certificate Holder has failed to comply with one (1) or more of the health and safety requirements under this Chapter. 8. The Registered Certificate Holder has engaged in fraud, misrepresentation, or false statements in obtaining or maintaining a Certificate of Registration. B. The term of suspension shall be not more than sixty (60) calendar days. 5.87.130 Suspension or Revocation Notice. A. Notice shall be given to the Registered Certificate Holder stating the grounds for proposed revocation or suspension. Notice shall be given by personal service or certified or registered mail to the address shown on the last application or renewal. If reasonable attempts to otherwise serve are not successful, service may be provided by first class mail. B. If the Certificate of Registration is suspended or revoked, the Certificate of Registration shall be surrendered. C. Service shall be deemed complete when personal service is made, when the certified letter is delivered, or when the decision is mailed by first class mail. 5.87.140 Appeal from Revocation,Suspension. The decision of the city manager to revoke or suspend a Certificate of Registration may be appealed by the Registered Certificate Holder in accordance with the following procedures: A. All appeals shall be in writing and shall contain the following information: (a) name(s) of the person filing the appeal (appellants); (b) a brief statement in ordinary and concise language of the grounds for the appeal; and (c) the signatures of all parties named as appellants and their mailing addresses. B. A filing fee for an appeal of one hundred dollars, or other amount as established from time to time by city council resolution, must be paid to the City at or prior to the time of the filing of the appeal. 72500.00762\7542239.9 10 ORDINANCE NO. 1256 Exhibit"A" C. Any appeal filed that fails to provide all of the information required by this section and the appropriate filing fee shall be deemed incomplete. D. A complete and proper appeal of the revocation or suspension of a Certificate of Registration shall be filed with the city clerk within ten(10) calendar days of service of the letter revoking or suspending the Certificate of Registration or within ten (10)calendar days of any other action that is the subject of appeal. E. After receiving the written appeal, the city clerk shall schedule a hearing before the city council. The city council may refer the matter to a hearing officer. The city council may decide the matter based on the recommendations and findings of the hearing officer, if it so chooses. F. The decision of the city council shall be final. 5.87.150 Reapplication after Denial or Revocation. No reapplication for a Certificate of Registration will be accepted within two (2) years 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 massage practitioner does not possess the required training, reapplication may occur when the required training is completed. 5.87.160 Inspection by City and Notices of Violation. A. The City shall have the right to enter the premises from time to time during regular business hours prior to the issuance of a Certificate of Registration 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 has been issued, it may be revoked or suspended in the manner set forth in this Chapter. It is unlawful for any massage business owner/operator to fail to allow City inspection officers into the premises or hinder such officer in any manner. During an inspection, enforcement officers may also verify the identity of all employees. B. Whenever City officials make an inspection of a massage business and finds that any provision of this Chapter has been violated,he or she shall give notice of such violation by means of an inspection report or other written notice. In any such notification,the investigating person shall: 1. Set forth the specific violation or violations found, and shall notify the Registered Certificate Holder that failure to comply with any notice issued in accordance with the provisions of this Chapter may result in the revocation or suspension of the Certificate of Registration. 2. 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, or the City officials may establish a specific and reasonable period of time for the correction of 72500.00762\7542239.9 11 ORDINANCE NO. 1256 Exhibit"A" the violation or violations. No time to correct need be given for health and safety violations or violations of criminal law. 3. The Registered Certificate Holder and operator shall take immediate action to correct violations and City officials may re-inspect the business for compliance. 5.87.170 Transfer of Massage Business Certificate of Registration. A Certificate of Registration - Business shall not be transferable except with the written approval of the city manager. A written application for such a transfer shall be made to the city manager. The application for such transfer shall contain the same information as required herein for an initial application for a Certificate of Registration as set forth in Section 5.87.050. 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 by means of registered or certified mail or delivered in person. 5.87.180 Special events notification required. When extra massage therapists are required for a special event at or organized by a Certified Massage Business or Certified Sole Practitioner, the owner, manager, or operator of the business must supply the city with a list of Certified Massage Practitioners who will be working at the event, copies of their Certificates of Registration, and any other information the city may reasonably require, not less than two weeks before the date of the event. 5.87.190 Exemptions. 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, acupuncturists,nurses or 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, estheticians, and manicurists who are duly licensed under the laws of the State of California 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 of the customers, and this exception shall not apply to full body work or full body massage. Further, this provision shall apply solely to businesses that generate less than fifty percent of their gross revenue from full body work or full body massage. C. Hospitals, nursing homes, sanatoriums, or other any health facilities duly licensed by the State of California. D. Accredited junior colleges and colleges or universities whose coaches and trainers are acting within the scope of their employment. 72500.00762\7542239.9 12 ORDINANCE NO. 1.256 Exhibit"A" 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 full body work or full body massage generates less than fifty percent of the business's gross revenue. However, persons performing massage services shall obtain a State Certification and City Certificate of Registration in conformance with this Chapter. 5.87.200 Health and Safety Requirements—Building requirements. All premises of Certified Massage Businesses shall be subject to periodic inspection by the City for compliance with health, safety, and building standards and all such establishments shall comply with, in addition to zoning and building codes, the following requirements: A. A recognizable and readable sign shall be posted at the main entrance of each massage business identifying the business as such business; provided, that all such signs shall comply with the sign regulations of the city. B. The owner or operator of each massage business shall display the Certificate of Registration issued to the business and to each massage practitioner employed in the business in an accessible and conspicuous place on the premises. Certified Massage Practitioners shall have his or her original State Certificate at his or her place of business and his or her identification card in his or her possession while providing massage services. C. Maximum occupancy load, fire exits, aisles and fire equipment shall be regulated, designed and provided in accordance with the fire department and building department regulations and standards. D. All building openings, entries,windows, etc., shall be located, covered or screened in such a manner as to prevent a view from the outside of the building into dressing rooms,treatment rooms, restrooms, and other areas where patrons of the business may not be fully dressed. E. Lighting in parking lots shall be in compliance with Chapter 24.16 of the municipal code. F. Construction of rooms used for toilets,baths and showers shall be made waterproof with approved waterproofed materials and shall be installed in accordance with the city building code. Plumbing fixtures shall be installed in accordance with the city plumbing code: 1. Steam rooms and shower compartments shall have waterproof floors,walls and ceilings approved by the city; 72500.00762\7542239.9 13 ORDINANCE NO. 1256 Exhibit"A" 2. Floors of wet and dry heat rooms shall be adequately pitched to one or more floor drains properly connected to the sewer. Dry heat rooms with wooden floors need not be provided with pitched floors and floor drains; 3. A source of hot water must be available within the immediate vicinity of dry and wet heat rooms to facilitate cleaning. G. Hot and cold running water under pressure from a potable source shall be provided to all washbasins, bathtubs, showers, and similar facilities. Each water basin shall be provided with soap or detergent and single-service towels placed in permanently installed dispensers. A trash receptacle shall be provided in each room where such facilities are located. H. Provide minimum lighting in accordance with the Uniform Building Code, and in addition, at least one artificial light of not less than forty watts shall be provided in each enclosed room where massage is being administered. I. Floors shall be free from any accumulation of dust, dirt, or refuse. J. One(1) 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. is 5.87.210 Health and Safety Requirements—Operating requirements. All premises of Certified Massage Businesses shall be subject to periodic inspection by the City for compliance with health, safety, and building standards and all such establishments shall comply with the following requirements: A. 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. B. A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises. No massage business operator shall permit, and no person employed or retained by the Certified Massage Business shall offer to perform, any services or fees other than those posted. C. A record shall be maintained that includes the date and time of each massage, the name and address of the patron, the name of the person administering such massage, and the type of massage given. Such records will be made available upon request based on good cause, for inspection by the city manager or police chief, or their designees. The information contained in such records shall be confidential. D. The premises shall have adequate equipment for disinfecting and sterilizing non- disposable instruments and materials used in administering massages. Such non-disposable instruments and materials shall be disinfected after each use on each patron. 72500.00762\7542239.9 14 ORDINANCE NO. 1256 Exhibit"A" E. It shall be 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. F. No loudspeakers or sound equipment shall be used by a massage establishment for amplification of sound to a level discernible by the public beyond the walls of the building in which use is conducted. G. No person shall give, or assist in the giving of, any massage or other body treatment to any other person under the age of eighteen years, unless the parent or guardian of the minor person has consented thereto in writing. H. No person owning, operating, or managing massage establishment may employ or use any person under eighteen years of age without written parental consent. I. Maintain walls, ceilings, floor, pools, showers, bathtubs, water basins, toilets, wet and dry heat rooms, steam or vapor rooms and cabinets and all other facilities in good repair and in a clean and sanitary condition. Showers, water basins, toilets, wet and dry heat rooms, steam or vapor rooms, and cabinets and compartments shall be thoroughly cleaned at least once each day the massage business is in operation. Bathtubs shall be thoroughly cleaned after each use. J. Provide clean and sanitary towels, sheets and linens for each person. No common usage of sheets, towels and linens shall be permitted. Towels, sheets and linens shall be provided in sufficient quantity and shall not be used by more than one person unless such towels, sheets and linens have been re-laundered. Separate closed cabinets or containers shall be provided for the storage of clean and soiled towels, sheets and linens, and such cabinets or containers shall be plainly marked"clean linen" and"soiled linen." K. Cover pad used on massage tables in workmanlike manner with durable, washable plastic or other waterproof material. L. Unlock all exterior doors from interior side during business hours. In the instance that the exterior door is the only door in the massage establishment, it may be locked,in the interests of privacy and safety, if all persons inside the massage establishment are either giving or receiving massages. M. No massage establishment granted a Certificate of Registration or license under the provisions of this chapter shall place,publish or distribute, or cause to be placed,published or distributed, any advertisement, picture or statement which is known, or through the exercise of reasonable care should be known, to be false, deceptive or misleading in order to induce any person to purchase or utilize any professional massage service. N. It is unlawful for any massage service to be carried on within any cubicle,room, booth, or any area within a permitted establishment which is fitted with a door capable of being locked, with the exception of certain massage establishments envisioned under Subsection L., 72500.00762\7542239.9 15 ORDINANCE NO. 1256 Exhibit"A" above. Toilets and cubicles used solely for the application of liquid and vapor baths shall be clearly marked as to purpose on the exterior door or curtain of said cubicle, room, or booth. Nothing contained herein shall be construed to eliminate other requirements of statute, ordinance or municipal code concerning the maintenance of premises, nor to preclude authorized inspection thereof, whenever such inspection is deemed necessary by the code enforcement, the police or health departments. 0. No permitted establishment shall operate as a school of massage, or operate in the same location, or use the same facilities as that of a school of massage except as otherwise may be provided by law. P. No person operating a massage establishment shall permit communication devices to be installed or used in any manner on the premises so as to interfere with or hinder inspections by code or law enforcement officers. Q. No person or persons shall be allowed to live or sleep inside the massage establishment at any time. R. 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. S. It shall be 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. T. If during the life of a Certificate of Registration,the applicant has any change in information concerning the original application, notification must be made to the city manager, in writing, within thirty(30)calendar days of the change. U. It shall be unlawful for any Certified Massage Business or any Registered Certificate Holder, owner, operator, or responsible managing officer/employee to violate any of the mandatory requirements of this Chapter applicable to massage business. 5.87.220 Violation—Penalties. A. Unless otherwise exempted by the provisions of this Chapter, every person, whether acting as an individual, owner, employee of the owner, operator, or employee of the operators 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 shall violate any provision of this Chapter, shall be guilty of an infraction. 72500.00762\7542239.9 16 ORDINANCE NO. 1256 Exhibit "A" 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 such a place of business, shall be guilty of an infraction. C. Anyone found to have violated any provision set forth herein shall be guilty of an infraction and anyone found to have violated any provision set forth herein more than three (3) times in a twelve(12) month period shall be guilty of a misdemeanor; however the City Attorney may reduce the penalty to an infraction. The penalties for such violations are as set forth in Chapter 1.12 of the Municipal Code. 5.87.230 Other remedies. The provisions of Section 5.87.220 are not to be construed as exclusive remedies and, in the event of violation, the city may pursue any proceedings or remedies otherwise provided by law. 5.87.240 Conducting a business as a nuisance. Any 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. 72500.00762\7542239.9 17 ORDINANCE NO. 1256 Exhibit "B" Chapter 5.90 MASSAGE PRACTITIONERS >.r 5.90.010 Title This article shall be known as the"massage practitioner law of the city of Palm Desert." 5.90.020 Authority This article is enacted pursuant to Chapter 6 Part 1 of Division 1 of Title 5 of the Government Code of the state(commencing with Section 51030) with recognition of the limitations imposed by Chapter 10.5 of Division 2 of the Business and Professions Code of the state (commencing with Section 4600). 5.90.030 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: "Applicant" shall mean an applicant for a Certificate of Registration—Individual. "California Massage Therapy Council" means the massage therapy organization formed pursuant to California Business and Professions Code Section 4600, and following, as amended, and referred to as CAMTC herein. "Certificate of Registration— Individual" means a certificate issued by the city manager upon submission of satisfactory evidence that a massage practitioner or therapist has a valid and current State Certification and has satisfied all other requirements pursuant to the provisions of this Chapter. "Certificate of Registration—Business"means a certificate issued by the city manager 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 of this Chapter. "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. "Certified Massage Practitioner"means any person holding a current and valid 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. "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. 72500.00762\7545019.6 1 ORDINANCE NO. 1256 Exhibit "B" "City manager" means the city manager of the City of Palm Desert, or designee. "Massage" means any method of treating the external parts of the body for 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 otherwise) by means of pressure on or friction against, or stroking,kneading, rubbing, tapping, pounding, or stimulating the external parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances; or with or without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly 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. "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 percent(5%) or greater ownership interest in a massage business whether as an individual, corporate entity, limited partner, shareholder or sole proprietor. "Registered Certificate Holder" means a person or business that has been issued a Certificate of Registration by the city manager. "State Certification" or "State Certificate" means a valid and current certification properly issued by CAMTC pursuant to California Business &Professions Code Section 4600, and following, as amended. 5.90.040 State Certification and City Registration Required A. Within one year of passage of this ordinance, it shall be unlawful for any individual to practice massage for compensation within the City unless that individual is a Certified Massage Practitioner and further, it shall be unlawful for any business to provide massage services within the City unless all individuals employed by the massage business to perform massage, whether as an employee or independent contractor, are Certified Massage Practitioners. B. Within one year of passage of this ordinance, unless issued a current and valid Certificate of Registration issued pursuant to this Chapter, it shall be 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 Certified Massage Business or the function of a Certified Massage Practitioner. 5.90.050 Certificates of Registration; Non-Transferable A. It shall be 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. This section expressly applies to all Massage Practitioners working as individuals unless specifically exempted pursuant to the provisions of Section 5.87.190. 72500.00762\7545019.6 2 ORDINANCE NO. 1256 Exhibit"B" B. The city manager shall issue a Certificate of Registration to any Certified Massage Practitioner who demonstrates the following: l. A valid and current State Certification; and 2. A valid and current California Massage Therapy Council ("CAMTC") issued identification card. C. If the application is denied, the city manager shall promptly give the applicant written notice thereof and the findings for such denial. The applicant may submit a written request for reconsideration with the city manager within ten(10) calendar days of the date of the city manager's written notice of denial. The request for reconsideration shall be accompanied by a fifty dollar filing fee, or other amount as established from time to time by city council resolution. Upon receipt of the written request, the city manager shall reconsider the application together with any new records, documents, or information presented by the applicant, or discovered by the City, within the time and manner provided in Section 5.87.050. The city manager's decision on the reconsideration shall be final. D. A Certificate of Registration- Individual shall not be transferable. 5.90.060 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 business license. Upon the issuance of a Certificate of Registration pursuant to this Chapter, the applicant shall apply for and furnish the information necessary to obtain a 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. The business license fee shall be commensurate with the business license fee charged to other professionals as established by this Code. 5.90.070 Certificate of Registration Expiration and Renewal A. Certificates of Registration- Individual shall be valid for two (2) years from issuance or as extended pursuant to this Chapter. B. The City Certificate of Registration shall be renewed in accordance with the expiration schedule set forth in this section. C. The Registered Certificate Holder- Individual shall apply to the City to renew such registration within thirty(30) calendar days prior to expiration of the Certificate of Registration and shall apply to the City to amend the Certificate of Registration within thirty(30) calendar days after any change in the registration information including but not limited to a change in the work address. The city manager may extend the Certificate of Registration one(1) time during a renewal period for up to ninety(90) calendar days for individuals who provide 72500.00762\7545019.6 3 ORDINANCE NO. .1256 Exhibit"B" timely evidence of a renewal application to CAMTC. Renewals shall be processed and investigated and the applicant is required to submit that information which has changed from the last application or renewal. D. If a renewal application and all required information for the renewal is not received by the city manager within thirty (30) calendar days after expiration, the Certificate of Registration shall be deemed expired and no privilege to provide massage in the City shall exist. 5.90.080 Revocation or Suspension of Certificate of Registration A. The city manager shall revoke or suspend a Certificate of Registration issued to individuals upon the following grounds: 1. The Registered Certificate Holder is no longer in possession of a current and valid State Certification or CAMTC issued identification card; 2. The Registered Certificate Holder has engaged in fraud, misrepresentation, or false statements in obtaining or maintaining a Certificate of Registration. B. The term of suspension of any permit shall be not more than sixty(60) calendar days. 5.90.090 Suspension or Revocation Notice Notice of suspension or revocation of a Certificate of Registration—Individual shall made in compliance with Section 5.87.130. 5.90.100 Appeal from Revocation,Suspension The decision of the city manager to revoke or suspend a Certificate of Registration may be appealed by the Registered Certificate Holder in accordance with the procedures set forth in Section 5.87.140. 5.90.110 Reapplication After Denial No reapplication for a Certificate of Registration will be accepted within one(1) year after an application or renewal is denied or a Certificate of Registration is revoked. 5.90.120 Compliance with Chapter 5.87 Certified Massage Practitioners shall comply with all applicable health and safety regulations found in Sections 5.87.200 and 5.87.210. 5.90.130 Violation—Penalties. A. Unless otherwise exempted by the provisions of this Chapter, every person, whether acting as an individual, owner, employee of the owner, operator, or employee of the 72500,00762\7545019.6 4 ORDINANCE NO. 1256 Exhibit `B" operators 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 shall violate any provision of this Chapter, shall be guilty of an infraction. 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 such a place of business, shall be guilty of an infraction. C. Anyone found to have violated any provision set forth herein shall be guilty of an infraction and anyone found to have violated any provision set forth herein more than three (3) times in a twelve (12) month period shall be guilty of a misdemeanor;however the City Attorney may reduce the penalty to an infraction. The penalties for such violations are as set forth in Chapter 1.12 of the Municipal Code. 5.90.140 Other remedies. The provisions of Section 5.90.130 are not to be construed as exclusive remedies and, in the event of violation, the city may pursue any proceedings or remedies otherwise provided by law. 72500.(X)762\7545019.6 5 CITY OF PALM DESE T G ,1% ,.,s`#o dw c �.�►€" � i_�_.-.� _� _._ _..___ DEPARTMENT OF COMMUNITY DE STAFF REPORT REQUEST: APPROVAL OF AMENDMENTS TO THE PALM DESERT MUNCICPAL CODE,CHAPTER 5.87 MASSAGE ESTABLISHMENTS AND MASSAGISTS, CHAPTER 5.90 MASSAGISTS PERMITS OF TITLE 5 BUSINESS TAXES, LICENSES AND REGULATIONS, AND TO TITLE 25 ZONING REGARDING MASSAGE BUSINESS ZONING AND LAND USE RESTRICTIONS SUBMITTED BY: Kevin Swartz, Assistant Planner 0 UED TO DATE: March 14, 2013 E�PAM TO 2ND READING CONTENTS: 1. Ordinance No. 1256 , Exhibit A nrl Exhibit EL 2. Legal Notice Recommendation Waive further reading and pass Ordinance No. 1256 to second reading approving amendments to the Palm Desert Municipal Code (PDMC)Titles 5 (Business Taxes, Licenses, and Regulations) and 25 (Zoning) in Chapter 5.87 Establishments and Massagists, Chapter 5.90 Massagists Permits, Chapter 25.10 Agricultural District, and Chapter 25.38 Public Institution District, regarding massage business zoning and land use restrictions. Executive Summary This report recommends that the City Council adopt amendments to the Municipal Code to ensure the City's compliance with the provisions of Senate Bill (SB) 731, Assembly Bill (AB) 619, and SB 1238, regarding massage practitioners and massage businesses. The Planning Department has worked closely with the Police Department and the City Attorney's Office in developing enforceable regulations consistent with the new laws. The new legislation has largely reduced local governments' regulatory authority in licensing, permitting, and zoning massage practitioners and businesses due to the creation of a State controlled agency, the California Massage Therapy Council (CAMTC). Local governments may regulate massage professionals and businesses in the same manner as all other individuals and businesses providing "professional services." The proposed ordinance requires that all massage practitioners be CAMTC-certified and that all business owners either provide proof of CAMTC-certification or submit to a full Ordinance No. 1256 Staff Report Approval of Amendments to Chapters 5.87 and 5.90 and Title 25 Page 2 of 5 March 14, 2013 background check and identity verification. Most importantly, the proposed ordinance establishes clear procedures for legal operation of massage businesses, enforcement, and penalties for violation of the ordinance. Background SB 731, adopted by the State Legislature in 2009, created uniform education standards, a certification process for massage practitioners, and a board called the CAMTC charged with oversight of the educational standards, certification process, and enforcement within the industry. (Business and Professions Code Section 4600 etseq.).The state certification process is voluntary, but state certified massage therapists and practitioners, as well as businesses that employ exclusively state licensed massage employees are not subject to regulation not specifically provided for in the Business and Professions Code. In 2011, the State Legislature passed AB 619 which clarified sections of SB 731. AB 619 provides, in part, that cities may regulate state certified massage practitioners and businesses provided that such regulations are no different than the requirements uniformly applied to all other individuals and businesses providing"professional services,"as defined in subdivision (a) of Section 13401 of the Corporations Code, unless otherwise exempted. Section 13401 of the Corporations Code defines "professional services" as any type of professional service that may be lawfully rendered to a license, certification, or registration authorized by the Business and Professions Code,the Chiropractic Act,or the Osteopathic Act. This definition is so broad that it includes uses such as locksmiths, mortuaries, alarm companies, contractors, and accountants, in addition to many other uses that are quite dissimilar from massage businesses. SB 1238 was adopted by the State Legislature in 2012 to further clarify SB 731 and AB 619. SB 1238 allows cities to adopt ordinances restricting the opening of a new massage establishment in a location in which a massage establishment has been closed due to criminal activity. In the early 2000's, the City participated with Coachella Valley Associations of Governments' (CVAG's) an attempt to establish Valley-wide licensing requirements for massage therapists. The ordinance amendments will assign to CAMTC all therapists licensing, so the City will no longer be part of that Valley-wide program. However, new state laws already mandate that CAMTC licensing is an alternative to City licensing. Requiring therapists to get a City license that is accepted Valley-wide is no longer an option. Staff has kept CVAG advised of the changes that staff is proposing to make. CVAG's staff has voiced no concerns regarding the amendments. GiPlanning\Kevin Swartz\Word\Massage OrdinanceTinal Massage Council Stall Report 3-19-13.doc Ordinance No. 1256 Staff Report Approval of Amendments to Chapters 5.87 and 5.90 and Title 25 Page 3 of 5 March 14, 2013 Discussion In 2012, staff met with representatives from CAMTC and discussed the State's certification process and enforcement. The CAMTC stated that they require the following of applicants wishing to be certified: • Certified Massage Therapist (CMT) - Generally required to complete at least 500 hours of massage education and training. At least 250 hours shall be at approved massage therapy schools, and the remaining 250 hours required may be secured either from approved schools or from continuing education providers. • Certified Massage Practitioner(CMP)-Generally must complete at least 250 hours of education and training, all at approved schools. • Live Scan fingerprints • A passport photo • A photocopy of a state ID • A fee CAMTC requires the submission of fingerprint images and related information to the Department of Justice and FBI and requests current and subsequent arrest notification services as provided under Section 11105.2 of the Penal Code. CAMTC also requires applicants to self-report convictions, any action against a local permit, or other professional permits or licenses on the CAMTC application. CAMTC also contacts the cities and counties in which the applicant lives and works, presently as well as in the past 10 years. CAMTC also has the authority to investigate an applicant or certificate holder's background. Based on the findings, CAMTC has the authority to deny an application for a certificate or to suspend or revoke a certificate for any violation of its law (California Business and Professions Code Section 4600 et seq.), including but not limited to subdivision (b) of Section 647 of the Penal Code or any other offense described in CAMTC's law. Chapters 5.87 & 5.90 Amendments Given the CAMTC's rigorous review of applications, a number of California cities have drafted ordinances requiring all massage practitioners to be CAMTC-certified. After discussions with CAMTC representatives and independent review, staff believes that the City should require massage professionals and businesses to be state certified and obtain a certificate of registration from the City. The requirements for obtaining a certificate of registration are found in Exhibit "A", Section 5.87.050 of the proposed ordinance. The ordinance also lays out the grounds for revocation of City registration as well as processes for appeal and reapplication. Any massage establishment that fails to get the certificate of registration as required by the ordinance will be in violation of the ordinance, and subject to any of the enforcement proceedings set forth therein. Among other things, an establishment in violation of Chapters 5.87 and 5.90 is a public nuisance,which the City GAPlanning\Kevin Swartz\Wad\Massage Ordinance+inal Massage Council Staff Report 3-19.13.doc Ordinance No. 1256 Staff Report Approval of Amendments to Chapters 5.87 and 5.90 and Title 25 Page 4 of 5 March 14, 2013 may seek to abate, including by seeking a temporary restraining order and/or injunction to temporarily or permanently shut down the illegal business. The process for this would entail the City's Code Enforcement Officer issuing a warning notice, then a Notice of Violation and then an administrative citation, and then the City Attorney would have to go to court to seek the TRO/injunction and go through the appropriate judicial process. The City may recover damages from the property owner, as well as from the person conducting or maintaining the nuisance. The health and safety requirements for massage business buildings and operations are substantially similar to existing requirements. Health and safety restrictions can be found in Exhibit "A", Section 5.87.200 and 5.87.210 of the proposed ordinance. Amendments to Chapter 5.90 apply to massage professionals. Massage professionals must also obtain a certificate of registration from the City by providing proof of State certification. Additionally, massage professionals must comply with all health and safety regulations found in Chapter 5.87. Zoning Code Amendments As noted above, AB 619 allows massage businesses in essentially any zone where a professional service is permitted. However, it can be reasonably assumed that if a particular zone requires all "professional services" businesses to obtain a Conditional Use Permit (CUP), as in the P Public/Institutional zone, then a massage business would be required to obtain a CUP prior to operation in that particular zone. In most instances, the Zoning Code already complies with AB 619 and no additional language is necessary. For example, "general offices" and "medical offices" are permitted in the Office Professional zone. "General offices" and "medical offices" would certainly include businesses providing "professional services."Since"professional services"are permitted in the Office Professional zone without a CUP, Certified Massage Businesses must also be permitted in this zone without a CUP. Additionally, "personal services"are permitted in the C1 General Commercial zone,the PC Planned Commercial Districts, and the El Paseo Pedestrian Commercial Overlay zone. Personal services include cosmetologists and barbers, which would be considered "professional services" under AB 619. Since"professional services"are permitted in these zones without a CUP, Certified Massage Businesses must also be permitted by right in these zones. In other instances, the Zoning Code must be amended in order to comply with AB 619. For example, Certified Massage Businesses must be added as a conditional use in Agriculture zones because other "professional services" are allowed by a CUP in that zone (e.g. commercial kennels, cemeteries) and none of the listed "professional services" would G:Tlanning\Kevin Swartz\Word\Massage Ordinance\Final Massage Council Staff Report 3-19-13.doc Ordinance No. 1256 Staff Report Approval of Amendments to Chapters 5.87 and 5.90 and Title 25 Page 5 of 5 March 14, 2013 reasonably incorporate Certified Massage Businesses. Similarly, Certified Massage Businesses must be considered a conditional use in P Public/Institutional zones since other "professional services" are permitted with a CUP, such as hospitals. Fiscal Analysis There is no significant fiscal impact regarding the approval of the amendments to Chapter 5.87 and Chapter 5.90 of Title 5 Business Taxes, Licenses, and Regulations of the Palm Desert Municipal Code. Environmental Review Pursuant to state and local environmental regulations, it has been determined that the regulations encompassed in this Ordinance are not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Submitted by: Department Head: Kevin Swartz, Assistant Planner Lauri Aylaian, Director of Community D&etopment 6aul S. Gibson, Finance Director Approval: n M. Wohlmuth, City Manager GAPlanninq\Kevin Swartz\Word\Massage Ordinance\Final Massage Council Staff Report 3.19.13.doc CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT PLANNING COMMISSION STAFF REPORT REQUEST: RECOMMENDATION TO THE CITY COUNCIL TO APPROVE AMENDMENTS TO TITLE 25 ZONING OF THE PALM DESERT MUNICIPAL CODE (PDMC) REGARDING MASSAGE BUSINESS ZONING AND LAND USE RESTRICTIONS SUBMITTED BY: Kevin Swartz, Assistant Planner DATE: January 15, 2013 CONTENTS: 1. Draft Resolution 2. Legal Notice 3. Business and Professions Code Section 4600-4620 Recommendation Waive further reading and adopt Resolution No. 2596, recommending that the City Council approve amendments to Title 25 Zoning of the Palm Desert Municipal Code regarding massage business zoning restrictions to ensure that the City is in compliance with the provisions of Assembly Bill (AB) 619. Executive Summary AB 619 states that local governments may adopt zoning regulations applicable to California Massage Therapy Council (CAMTC) certified individuals and businesses, as long as those regulations are no different than the requirements uniformly applied to all other individuals and businesses providing "professional services." To accommodate the broad definition of "professional services," the City must amend sections of Title 25 Zoning to obtain compliance with AB 619. Background SB 731 , adopted by the State Legislature in 2009, created uniform education standards, a certification process for massage practitioners, and a board called the CAMTC charged with oversight of the educational standards, certification process, and enforcement within the industry. (Business and Professions Code Section 4600 et seq.). Staff Report Amendment of the PDMC regarding Massage Zoning Restrictions Page 2 of 3 January 15, 2013 With respect to zoning regulations, SB 731 prohibited local governments from imposing zoning requirements on CAMTC certified individuals and businesses that are different than requirements "uniformly applied to other professional and personal services businesses." (Former Bus. & Prof. Code, § 4612(b)(5).) SB 731 did not define "professional and personal services businesses," but this term was generally interpreted to mean businesses similar in nature to massage businesses such as cosmetologists, barbers, nail salons, and the like. SB 731 was amended in 2011 by AB 619. AB 619 states that local governments may adopt zoning regulations applicable to CAMTC certified individuals and businesses as long as those regulations are "no different than the requirements uniformly applied to all other individuals and businesses providing professional services, as defined in subdivision (a) of Section 13401 of the Corporations Code." (Bus. & Prof. Code, § 4612(a)(4).) Section 13401 of the Corporations Code defines "professional services" as any type of professional service that may be lawfully rendered to a license, certification, or registration authorized by the Business and Professions Code, the Chiropractic Act, or the Osteopathic Act. This definition is so broad that it includes uses such as locksmiths, mortuaries, alarm companies, contractors, and accountants, in addition to many other uses that are quite dissimilar from massage businesses. Therefore, AB 619 allows massage businesses in essentially any zone where a professional service is permitted. However, it can be reasonably assumed that if a particular zone requires all "professional services" businesses to obtain a Conditional Use Permit (CUP), as in the P Public/Institutional zone, then a massage business would be required to obtain a CUP prior to operation in that particular zone. SB 731 and AB 619 were amended in 2012 by SB 1238, but this most recent senate bill does not affect zoning regulations. Discussion As noted above, AB 619 requires that the City apply the same zoning restrictions to massage businesses as other "professional services" businesses. In most instances, the Zoning Code already complies with AB 619 and no additional language is necessary. For example, "general offices" and "medical offices" are permitted in the Office Professional zone. "General offices" and "medical offices" would certainly include businesses providing "professional services." Since "professional services" are permitted in the Office Professional zone without a CUP, Certified Massage Businesses must also be permitted in this zone without a CUP. G:\Planning\Kevin Swartz\Word\Massage Ordinance\PC Staff Report 1-15-13 Amendment Massage Ord.doc Staff Report Amendment of the PDMC regarding Massage Zoning Restrictions Page 3 of 3 January 15, 2013 Additionally, "personal services" are permitted in the C1 General Commercial zone, the PC Planned Commercial Districts, and the El Paseo Pedestrian Commercial Overlay zone. Personal services include cosmetologists and barbers, which would be considered "professional services" under AB 619. Since "professional services" are permitted in these zones without a CUP, Certified Massage Businesses must also be permitted by right in these zones. In other instances, the Zoning Code must be amended in order to comply with AB 619. For example, Certified Massage Businesses must be added as a conditional use in Agriculture zones because other "professional services" are allowed by a CUP in that zone (e.g. commercial kennels, cemeteries) and none of the listed "professional services" would reasonably incorporate Certified Massage Businesses. Similarly, Certified Massage Businesses must be considered a conditional use in P Public/Institutional zones since other "professional services" are permitted with a CUP, such as hospitals. Staff recommends the above-mentioned amendments to Title 25 Zoning to both codify State law requirements in the City's Municipal Code, and to exercise certain oversight authority granted under AB 619. Environmental Review Pursuant to state and local environmental regulations, it has been determined that the regulations encompassed in this Ordinance are not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Submitted By: lam+ - Kevin Swartz, Assistant Planner Department Head: Lauri Aylaian, Director of Community De _ ment GAPlanning\Kevin Swartz\Word\Massage Ordinance\PC Staff Report 1-15-13 Amendment Massage Ord.doc PLANNING COMMISSION RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING AMENDMENT OF PALM DESERT MUNICIPAL CODE REGARDING MASSAGE BUSINESS ZONING RESTRICTIONS. WHEREAS, the City of Palm Desert ("City") is authorized by the California Constitution and Government Code Section 51030 et seq., to regulate massage businesses by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of massage businesses; and WHEREAS, massage businesses and other specified personal or professional services businesses are businesses which involve significant intimate contact between persons, which create opportunities for acts of prostitution and other unlawful sexual activity to occur; and WHEREAS, in 2009, the Legislature passed Senate Bill 731 (Business & Professions Code Section 4600 et seq.) amended in 2011 by Assembly Bill 619 and again in 2012 by Senate Bill 1238, which in combination created a state-organized non-profit organization, the California Massage Therapy Council ("CAMTC"), that has regulatory authority over the certification of massage therapists and practitioners throughout the State of California; and WHEREAS, SB 731, AB 619, and SB 1238 imposed new limitations on the authority of local jurisdictions to enact or enforce regulations applicable to CAMTC certified individuals and massage establishments employing only those individuals and pre-empting the application of certain land use, zoning and facility requirements on such massage establishments while preserving local jurisdictions' authority to adopt and enforce certain business licensing and reasonable health and safety requirements for massage establishments and massage professionals; and WHEREAS, the City wishes to amend the Palm Desert Municipal Code to ensure that the City regulates massage therapists, massage establishments and other specified professional services businesses in compliance with the provisions of SB 731, AB 619, and SB 1238. NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA AS FOLLOWS: SECTION 1. Section 25.04.171 of Chapter 25.04 (Definitions) of the Palm Desert Municipal Code is hereby added as follows: "Certified Massage Business(es) shall be defined by Palm Desert Municipal Code Section 5.87.030." SECTION 2. Section 25.10.030 is hereby amended to include: "H. Certified Massage Businesses." SECTION 3. Section 25.38.030 is hereby amended to include: "S. Certified Massage Businesses." PLANNING COMMISSI1 3ESOLUTION NO. SECTION 4. Compliance with California Environmental Quality Act Pursuant to state and local environmental regulations, it has been determined that the regulations encompassed in this Ordinance are not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 5. General Plan Consistency Based on the entire record before the Planning Commission and all written and oral evidence presented, including the staff report and the findings made in this Ordinance, the Planning Commission of the City of Palm Desert hereby finds and determines that the proposed Ordinance is consistent with the goals and policies of the City of Palm Desert General Plan and is reasonably related to the public welfare of the citizens of the City and the surrounding region. Specifically, this Ordinance will help to reduce the likelihood of Massage Establishments to be used for illegal activity. PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning Commission of the City of Palm Desert, California, on the day of , 2013 by the following roll call vote: AYES: NOES: ABSENT: ABSTAIN: NANCY DE LUNA, CHAIRPERSON ATTEST: LAURI AYLAIAN, SECRETARY CITY OF PALM DESERT, CALIFORNIA r LI1Y OF PNl (11 0 1t� i 73-510 FRL'D WARINc DRIvE PALM DEsixr,CALIFORNIA 92260-2578 TEL:760 346-o61I FAX:760 341-7098 inIoC'pal n-dnxrt.org CITY OF PALM DESERT LEGAL NOTICE CONSIDERATION TO THE CITY COUNCIL BY THE PLANNING COMMISSION RECOMMENDING AN ORDINANCE TO AMEND CHAPTERS 5.87 AND 5.90 OF THE PALM DESERT MUNICIPAL CODE REGARDING MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS. PROJECT DESCRIPTION: The Planning Commission will consider recommending amendment of the Palm Desert Municipal Code regarding massage business zoning restrictions. PROJECT LOCATION: Citywide, City of Palm Desert PUBLIC HEARING: SAID public hearing will be held on Tuesday, January 15, 2013 at 6:00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed moratorium is available for review in the Department of Community Development at the above address between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing. PUBLISH: Desert Sun Lauri Aylaian, Secretary December 29, 2012 Palm Desert Planning Commission i WAIS Document Retrieval 1/1/12 4:10 PM CALIFORNIA CODES BUSINESS AND PROFESSIONS CODE SECTION 4600-4620 4600. As used in this chapter, the following terms shall have the following meanings: (a) "Approved school" or "approved massage school" means a school approved by the council that meets minimum standards for training and curriculum in massage and related subjects and that meets any of the following requirements: (1) Is approved by the Bureau for Private Postsecondary Education. (2) Is approved by the Department of Consumer Affairs. (3) Is an institution accredited by the Accrediting Commission for Senior Colleges and Universities or the Accrediting Commission for Community and Junior Colleges of the Western Association of Schools and Colleges and that is one of the following: (A) A public institution. (B) An institution incorporated and lawfully operating as a nonprofit public benefit corporation pursuant to Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the Corporations Code, and that is not managed by any entity for profit. (C) A for-profit institution. (D) An institution that does not meet all of the criteria in subparagraph (B) that is incorporated and lawfully operating as a nonprofit public benefit corporation pursuant to Part 2 (commencing with Section 5110) of Division 2 of Title 1 of the Corporations Code, that has been in continuous operation since April 15, 1997, and that is not managed by any entity for profit. (4) Is a college or university of the state higher education system, as defined in Section 100850 of the Education Code. (5) Is a school of equal or greater training that is recognized by the corresponding agency in another state or accredited by an agency recognized by the United States Department of Education. (b) "Compensation" means the payment, loan, advance, donation, contribution, deposit, or gift of money or anything of value. (c) "Massage therapist, " "bodyworker, " "bodywork therapist, " or "massage and bodywork therapist" means a person who is certified by the California Massage Therapy Council under subdivision (c) of Section 4601 and who administers massage for compensation. (d) "Massage practitioner, " "bodywork practitioner, " or "massage and bodywork practitioner" means a person who is certified by the California Massage Therapy Council under subdivision (b) of Section 4601 and who administers massage for compensation. (e) "Council" means the California Massage Therapy Council created pursuant to this chapter, which shall be a nonprofit organization exempt from taxation under Section 501(c) (3) of Title 26 of the United States Code. The council may commence activities as authorized by this section once it has submitted a request to the Internal Revenue Service seeking this exemption. Whenever the term "organization" is used in this chapter, it shall mean the council, except where the context indicates otherwise. (f) "Registered school" means a school approved by the council that meets minimum standards for training and curriculum in massage http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdoclD=46298910499+O+O+O&WAlSaction=retrieve Page 1 of 13 WAIS Document Retrieval 1/1/12 4:10 PM and related subjects and that either is approved by the Bureau for Private Postsecondary Education or the Department of Consumer Affairs, or is an institution accredited by the senior commission or the junior commission of the Western Association of Schools and Colleges as defined in paragraph (3) of subdivision (a) , is a college or university of the state higher education system as defined in Section 100850 of the Education Code, or is a school of equal or greater training that is approved by the corresponding agency in another state. (g) For purposes of this chapter, the terms "massage" and "bodywork" shall have the same meaning. 4600.5. (a) The California Massage Therapy Council, as defined in subdivision (e) of Section 4600, shall be created and shall have the responsibilities and duties set forth in this chapter. The council may take any reasonable actions to carry out the responsibilities and duties set forth in this chapter, including, but not limited to, hiring staff and entering into contracts. (b) (1) The council shall be governed by a board of directors made up of two representatives selected by each professional society, association, or other entity, whose membership is comprised of massage therapists and that chooses to participate in the council. To qualify, a professional society, association, or other entity shall have a dues-paying membership in California of at least 1,000 individuals for the last three years, and shall have bylaws that require its members to comply with a code of ethics. The board of directors shall also include each of the following persons: (A) One member selected by each statewide association of private postsecondary schools incorporated on or before January 1, 2010, whose member schools have together had at least 1,000 graduates in each of the previous three years from massage therapy programs meeting the approval standards set forth in subdivision (a) of Section 4600, except from those qualifying associations that choose not to exercise this right of selection. (B) One member selected by the League of California Cities, unless that entity chooses not to exercise this right of selection. (C) One member selected by the California State Association of Counties, unless that entity chooses not to exercise this right of selection. (D) One member selected by the Director of Consumer Affairs, unless that entity chooses not to exercise this right of selection. (E) One member appointed by the Office of the Chancellor of the California Community Colleges, unless that entity chooses not to exercise this right of selection. The person appointed, if any, shall not be part of any massage therapy certificate or degree program. The council's bylaws shall establish a process for appointing other professional directors as determined by the board. (2) The initial board of directors shall establish the council, initiate the request for tax-exempt status from the Internal Revenue Service, and solicit input from the massage community concerning the operations of the council. The initial board of directors, in its discretion, may immediately undertake to issue the certificates authorized by this chapter after adopting the necessary bylaws or other rules, or may establish by adoption of bylaws the permanent governing structure prior to issuing certificates. http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdoclD=46298910499+0+0+O&WA]Saction=retrieve Page 2 of 13 WAIS Document Retrieval 1/1/12 4:10 PM (c) The board of directors snall establish fees reasonably related to the cost of providing services and carrying out its ongoing responsibilities and duties. Initial and renewal fees shall be established by the board of directors annually. (d) The meetings of the council shall be subject to the rules of the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) . 4601. (a) The council shall issue a certificate under this chapter to an applicant who satisfies the requirements of this chapter. (b) (1) In order to obtain certification as a massage practitioner, an applicant shall submit a written application and provide the council with satisfactory evidence that he or she meets all of the following requirements: (A) The applicant is 18 years of age or older. (B) The applicant has successfully completed, at a single approved school, curricula in massage and related subjects totaling a minimum of 250 hours that incorporates appropriate school assessment of student knowledge and skills. Included in the hours shall be instruction addressing anatomy and physiology, contraindications, health and hygiene, and business and ethics, with at least 100 hours of the required minimum 250 hours devoted to these curriculum areas. (C) All fees required by the council have been paid. (2) New certificates shall not be issued pursuant to this subdivision after December 31, 2015. Certificates issued pursuant to this section or subdivision (a) or (c) of Section 4604 on or before December 31, 2015, shall, after December 31, 2015, be renewed without any additional educational requirements, provided that the certificate holder continues to be qualified pursuant to this chapter. (c) In order to obtain certification as a massage therapist, an applicant shall submit a written application and provide the council with satisfactory evidence that he or she meets all of the following requirements: (1) The applicant is 18 years of age or older. (2) The applicant satisfies at least one of the following requirements: (A) He or she has successfully completed the curricula in massage and related subjects totaling a minimum of 500 hours. Of this 500 hours, a minimum of 250 hours shall be from approved schools. The remaining 250 hours required may be secured either from approved or registered schools, or from continuing education providers approved by, or registered with, the council or the Department of Consumer Affairs. After December 31, 2015, applicants may only satisfy the curricula in massage and related subjects from approved schools. (B) The applicant has passed a massage and bodywork competency assessment examination that meets generally recognized psychometric principles and standards, and that is approved by the board. The successful completion of this examination may have been accomplished before the date the council is authorized by this chapter to begin issuing certificates. (3) All fees required by the council have been paid. (d) The council shall issue a certificate to an applicant who meets the other qualifications of this chapter and holds a current and valid registration, certification, or license from any other http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdoclD=46298910499+0+0+O&WAlsaction=retrieve Page 3 of 13 WAIS Document Retrieval 1/1/12 4:10 PM state whose licensure requirements meet or exceed those defined within this chapter. The council shall have discretion to give credit for comparable academic work completed by an applicant in a program outside of California. (e) An applicant applying for a massage therapist certificate shall file with the council a written application provided by the council, showing to the satisfaction of the council that he or she meets all of the requirements of this chapter. (f) Any certification issued under this chapter shall be subject to renewal every two years in a manner prescribed by the council, and shall expire unless renewed in that manner. The council may provide for the late renewal of a license. (g) (1) The council shall have the responsibility to determine that the school or schools from which an applicant has obtained the education required by this chapter meet the requirements of this chapter. If the council has any reason to question whether or not the applicant received the education that is required by this chapter from the school or schools that the applicant is claiming, the council shall investigate the facts to determine that the applicant received the required education prior to issuing a certificate. (2) For purposes of paragraph (1) and any other provision of this chapter for which the council is authorized to receive factual information as a condition of taking any action, the council shall have the authority to conduct oral interviews of the applicant and others or to make any investigation deemed necessary to establish that the information received is accurate and satisfies any criteria established by this chapter. 4601.2. No certificates shall be issued by the organization pursuant to this chapter prior to September 1, 2009. 4601.3. (a) Prior to issuing a certificate to the applicant or designating a custodian of records, the council shall require the applicant or the custodian of records candidate to submit fingerprint images in a form consistent with the requirements of this section. The council shall submit the fingerprint images and related information to the Department of Justice for the purpose of obtaining information as to the existence and nature of a record of state and federal level convictions and of state and federal level arrests for which the Department of Justice establishes that the applicant or candidate was released on bail or on his or her own recognizance pending trial. Requests for federal level criminal offender record information received by the Department of Justice pursuant to this section shall be forwarded to the Federal Bureau of Investigation by the Department of Justice. The Department of Justice shall review the information returned from the Federal Bureau of Investigation, and shall compile and disseminate a fitness determination regarding the applicant or candidate to the council. (b) The Department of Justice shall provide information to the council pursuant to subdivision (p) of Section 11105 of the Penal Code. (c) The Department of Justice and the council shall charge a fee sufficient to cover the cost of processing the request for state and http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdoclD=46298910499+0+0+O&WAISaction=retrieve Page 4 of 13 WAIS Document Retrieval 1/1/12 4:10 PM federal level criminal offender record information. (d) The council shall request subsequent arrest notification service from the Department of Justice, as provided under Section 11105.2 of the Penal Code, for all applicants for licensure or custodian of records candidates for whom fingerprint images and related information are submitted to conduct a search for state and federal level criminal offender record information. (e) This section shall become operative September 1, 2009. 4601.4. Council directors, employees, or volunteer individuals may undergo the background investigation process delineated in Section 4601.3. 4602. (a) The council may discipline a certificate holder by any, or a combination, of the following methods: (1) Placing the certificate holder on probation. (2) Suspending the certificate and the rights conferred by this chapter on a certificate holder for a period not to exceed one year. (3) Revoking the certificate. (4) Suspending or staying the disciplinary order, or portions of it, with or without conditions. (5) Taking other action as the council, as authorized by this chapter or its bylaws, deems proper. (b) The council may issue an initial certificate on probation, with specific terms and conditions, to any applicant. (c) (1) Notwithstanding any other provision of law, if the council receives notice that a certificate holder has been arrested and charges have been filed by the appropriate prosecuting agency against the certificate holder alleging a violation of subdivision (b) of Section 647 of the Penal Code or any other offense described in subdivision (h) of Section 4603, the council shall take all of the following actions: (A) Immediately suspend, on an interim basis, the certificate of that certificate holder. (B) Notify the certificate holder. within 10 days at the address last filed with the council that the certificate has been suspended, and the reason for the suspension. (C) Notify any business within 10 days that the council has in its records as employing the certificate holder that the certificate has been suspended. (2) Upon notice to the council that the charges described in paragraph (1) have resulted in a conviction, the suspended certificate shall become subject to permanent revocation. The council shall provide notice to the certificate holder within 10 days that it has evidence of a valid record of conviction and that the certificate will be revoked unless the certificate holder provides evidence within 15 days that the conviction is either invalid or that the information is otherwise erroneous. (3) Upon notice that the charges have resulted in an acquittal, or have otherwise been dismissed prior to conviction, the certificate shall be immediately reinstated and the certificate holder and any business that received notice pursuant to subparagraph (C) of paragraph ( 1) shall be notified of the reinstatement within 10 days. http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdociD=46298910499+0+0+O&WAISaction=retrieve Page 5 of 13 WAIS Document Retrieval 1/1112 4:10 PM 4602.5. (a) Upon the request of any law enforcement agency or any other representative of a local government agency with responsibility for regulating, or administering a local ordinance relating to, massage or massage businesses, the council shall provide information concerning a certificate holder, including, but not limited to, the current status of the certificate, any history of disciplinary actions taken against the certificate holder, the home and work addresses of the certificate holder, and any other information in the council's possession that is. necessary to verify facts relevant to administering the local ordinance. (b) The council shall accept information provided by any law enforcement agency or any other representative of a local government agency with responsibility for regulating, or administering a local ordinance relating to, massage or massage businesses. The council shall have the responsibility to review any information received and to take any actions authorized by this chapter that are warranted by that information. 4603. It is a violation of this chapter for a certificate holder to commit, and the council may deny an application for a certificate or discipline a certificate holder for, any of the following: (a) Unprofessional conduct, including, but not limited to, denial of licensure, revocation, suspension, restriction, or any other disciplinary action against a certificate holder by another state or territory of the United States, by any other government agency, or by another California health care professional licensing board. A certified copy of the decision, order, or judgment shall be conclusive evidence of these actions. (b) Procuring a certificate by fraud, misrepresentation, or mistake. (c) Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision or term of this chapter or any rule or bylaw adopted by the council. (d) Conviction of any felony, or conviction of a misdemeanor that is substantially related to the qualifications or duties of a certificate holder, in which event the record of the conviction shall be conclusive evidence of the crime. (e) Impersonating an applicant or acting as a proxy for an applicant in any examination referred to under this chapter for the issuance of a certificate. (f) Impersonating a certified practitioner or therapist, or permitting or allowing an uncertified person to use a certificate. (g) Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications or duties of a certificate holder. (h) Committing any act punishable as a sexually related crime. 4603.1. (a) No certificate holder or certificate applicant may be disciplined or denied a certificate pursuant to Section 4603 except http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdociD=46298910499+0+0+O&WAISaction=retrieve Page 6 of 13 WAIS Document Retrieval 1/1/12 4:10 PM according to procedures satiszying the requirements of this section. A denial or discipline not in accord with this section or subdivision (c) of Section 4602 shall be void and without effect. (b) Any certificate applicant denial or certificate holder discipline shall be done in good faith and in a fair and reasonable manner. Any procedure that conforms to the requirements of subdivision (c) is fair and reasonable, but a court may also find other procedures to be fair and reasonable when the full circumstances of the certificate denial or certificate holder discipline are considered. (c) A procedure is fair and reasonable when the procedures in subdivision (c) of Section 4602 are followed, or if all of the following apply: (1) The provisions of the procedure have been set forth in the articles or bylaws, or copies of those provisions are sent annually to all the members as required by the articles or bylaws. (2) It provides the giving of 15 days prior notice of the certificate denial or certificate holder discipline and the reasons therefor. (3) It provides an opportunity for the certificate applicant or certificate holder to be heard, orally or in writing, not less than five days before the effective date of the certificate denial or certificate holder discipline by a person or body authorized to decide that the proposed certificate denial or certificate holder discipline not take place. (d) Any notice required under this section may be given by any method reasonably calculated to provide actual notice. Any notice given by mail must be given by first-class or certified mail sent to the last address of the certificate applicant or certificate holder shown on the council ' s records. (e) Any action challenging a certificate denial or certificate holder discipline, including any claim alleging defective notice, shall be commenced within one year after the date of the certificate denial or certificate holder discipline. If the action is successful, the court may order any relief, including reinstatement, that it finds equitable under the circumstances. (f) This section governs only the procedures for certificate denial or certificate holder discipline and not the substantive grounds therefor. A certificate denial or certificate holder discipline based upon substantive grounds that violates contractual or other rights of the member or is otherwise unlawful is not made valid by compliance with this section. (g) The council shall be sued only in the county of its principal office. 4603.5. It shall be the responsibility of any certificate holder to notify the council of his or her home address, as well as the address of any business establishment where he or she regularly works as a massage therapist or massage practitioner, whether as an employee or as an independent contractor. A certificate holder shall notify the council within 30 days of changing either his or her home address or the address of the business establishment where he or she regularly works as a massage therapist or massage practitioner. http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdoclD=46298910499+0+0+O&WAlsaction=retrieve Page 7 of 13 WAIS Document Retrieval 1/1/12 4:10 PM 4603.7. A certificate holder snall include the name under which he or she is certified and his or her certificate number in any and all advertising and shall display his or her certificate at his or her place of business. 4604. (a) Notwithstanding Section 4601, the council may grant a massage practitioner certificate to any person who applies on or before January 1, 2012, with one of the following: (1) A current valid massage permit or license from a California city, county, or city and county and documentation evidencing that the person has completed at least a 100-hour course in massage at an approved or registered school, or out-of-state school recognized by the council as providing comparable education, has been practicing for at least three years, and has provided at least 1,000 hours of massage to members of the public for compensation. (2) Documentation evidencing that the person has completed at least a 100-hour course in massage at an approved or registered school, or out-of-state school recognized by the council as providing comparable education, has been practicing for at least three years, and has provided at least 1,750 hours of massage to members of the public for compensation. For purposes of this subdivision, evidence of practice shall include either of the following: (A) A W-2 form or employer's affidavit containing the dates of the applicant's employment. (B) Tax returns indicating self-employment as a massage practitioner or massage therapist or any other title that may demonstrate experience in the field of massage. (3) Documentation evidencing that the person holds a current valid certificate of authorization as an instructor at an approved massage school, or holds the position of a massage instructor at a school accredited by an agency recognized by the United States Department of Education, or colleges and universities of the state higher education system, as defined in Section 100850 of the Education Code. (b) ( 1) After reviewing the information submitted under subdivision (a) , the council may require additional information necessary to enable it to determine whether to issue a certificate. (2) If an applicant under paragraph ( 1) of subdivision (a) or paragraph ( 1) of subdivision (c) has not complied with Section 4601.3, or its equivalent, when obtaining a license or permit from the city, county, or city and county, the council shall require the applicant to comply with Section 4601.3 prior to issuing a certificate pursuant to this section. (c) (1) A person applying for a massage practitioner certificate on or before January 1, 2012, who meets the educational requirements of either paragraph (1) or (2) of subdivision (a) , but who has not completed the required number of practice hours prior to submitting an application pursuant to this section, may apply for a conditional certificate. (2) An applicant for a conditional certificate shall, within five years of being issued the conditional certificate, be required to complete at least 30 hours of additional education per year from schools or courses described in paragraph (5) until he or she has completed a total of at least 250 hours of education, which may include massage education hours previously completed in a massage course described in either paragraph (1) or (2) of subdivision (a) . (3) Upon successful completion of the requirements of this http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=46298910499+0+0+0&WAlSaction=retrieve Page 8 of 13 WAIS Document Retrieval 1/1/12 4:10 PM subdivision, the council shaii issue a certificate to the person that is not conditional. (4) A conditional certificate issued to any person pursuant to this subdivision shall immediately be nullified, without need for further action by the council, if the time period specified in paragraph (2) expires without proof of completion of the requirements having been filed with the council. (5) Any additional education required by this section may be completed through courses provided by any of the following: (A) An approved school. (B) A registered school. (C) A provider approved by, or registered with, the council or the Department of Consumer Affairs. (D) A provider that establishes to the satisfaction of the council that its course or courses are appropriate educational programs for this purpose. (d) Nothing in this section shall preclude the council from exercising any power or authority conferred by this chapter with respect to a conditional certificate holder. 4605. It is an unfair business practice for any person to state or advertise or put out any sign or card or other device, or to represent to the public through any print or electronic media, that he or she is certified, registered, or licensed by a governmental agency as a massage therapist or massage practitioner. 4606. It is an unfair business practice for any person to hold oneself out or use the title of "certified massage therapist" or "certified massage practitioner" or any other term, such as "licensed, " "registered, " or "CMT, " that implies or suggests that the person is certified as a massage therapist or practitioner without meeting the requirements of Section 4601 or 4604. 4607. The superior court in and for the county in which any person acts as a massage practitioner or massage therapist in violation of the provisions of this chapter, may, upon a petition by any person, issue an injunction or other appropriate order restraining the conduct. The proceedings under this paragraph shall be governed by Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. 4608. Nothing in this chapter is intended to limit or prohibit a person who obtains a certification pursuant to this chapter from providing services pursuant to, and in compliance with, Sections 2053.5 and 2053.6. 4612. (a) (1) The holder of a certificate issued pursuant to this chapter shall have the right to practice massage, consistent with http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdoclD=46298910499+0+0+0&WAlsaction=retrieve Page 9 of 13 WAIS Document Retrieval 1/1112 4:10 PM this chapter and the qualifications established by his or her certification, in any city, county, or city and county in this state and shall not be required to obtain any other license, permit, or other authorization, except as provided in this section, to engage in that practice. (2) Notwithstanding any other provision of law, a city, county, or city and county shall not enact an ordinance that requires a license, permit, or other authorization to provide massage for compensation by an individual who is certified pursuant to this chapter and who is practicing consistent with the qualifications established by his or her certification, or by a massage business or massage establishment that employs or uses only persons who are certified pursuant to this chapter to provide massage for compensation. No provision of any ordinance enacted by a city, county, or city and county that is in effect before the effective date of this chapter, and that requires a license, permit, or other authorization to provide massage for compensation, may be enforced against an individual who is certified pursuant to this chapter or against a massage business or massage establishment that employs or uses only persons who are certified pursuant to this chapter to provide massage for compensation. (3) Except as provided in subdivision (b) , nothing in this section shall be interpreted to prevent a city, county, or city and county from adopting or enforcing any local ordinance that provides for reasonable health and safety requirements for massage establishments or businesses. Subdivision (b) shall not apply to any massage establishment or business that employs or uses persons to provide massage services who are not certified pursuant to this chapter. (b) (1) This subdivision shall apply only to massage establishments or businesses that are sole proprietorships, where the sole proprietor is certified pursuant to this chapter, and to massage establishments or businesses that employ or use only persons certified pursuant to this chapter to provide massage services. For purposes of this subdivision, a sole proprietorship is a business where the owner is the only person employed by that business to provide massage services. (2) (A) Any massage establishment or business described in paragraph (1) shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services are certified. (B) Nothing in this section shall preclude a city, county, or city and county from including in a local ordinance a provision that requires a business described in paragraph (1) to file copies or provide other evidence of the certificates held by the persons who are providing massage services at the business. (3) A city, county, or city and county may charge a massage business or establishment a business licensing fee, provided that the fee shall be no different than the fee that is uniformly applied to all other individuals and businesses providing professional services, as defined in subdivision (a) of Section 13401 of the Corporations Code. (4) Nothing in this section shall prohibit a city, county, or city and county from enacting ordinances, regulations, rules, requirements, restrictions, land use regulations, moratoria, conditional use permits, or zoning requirements applicable to an individual certified pursuant to this chapter or to a massage establishment or business that uses only individuals who are http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=46298910499+0+0+0&WAISaction=retrieve Page 10 of 13 WAIS Document Retrieval 1/1112 4:10 PM certified pursuant to this chapter to provide massage for compensation, provided that, unless otherwise exempted by this chapter, these ordinances, regulations, rules, requirements, restrictions, land use regulations, moratoria, conditional use permits, and zoning requirements shall be no different than the requirements that are uniformly applied to all other individuals and businesses providing professional services, as defined in subdivision (a) of Section 13401 of the Corporations Code. No provision of any ordinance, regulation, rule, requirement, restriction, land use regulation, moratoria, conditional use permit, or zoning requirement enacted by a city, county, or city and county that is in effect before the effective date of this chapter, and that is inconsistent with this paragraph, may be enforced against an individual who is certified pursuant to this chapter or against a massage business or massage establishment that uses only individuals who are certified pursuant to this chapter to provide massage for compensation. (5) Local building code or physical facility requirements applicable to massage establishments or businesses shall not require additional restroom, shower, or other facilities that are not uniformly applicable to other professional or personal service businesses, nor shall building or facility requirements be adopted that (A) require unlocked doors when there is no staff available to ensure security for clients and massage staff who are behind closed doors, or (B) require windows that provide a view into massage rooms that interfere with the privacy of clients of the massage business. (6) A city, county, or city and county may adopt reasonable health and safety requirements with respect to massage establishments or businesses, including, but not limited to, requirements for cleanliness of massage rooms, towels and linens, and reasonable attire and personal hygiene requirements for persons providing massage services, provided that nothing in this paragraph shall be interpreted to authorize adoption of local ordinances that impose additional qualifications, such as medical examinations, background checks, or other criteria, upon any person certified pursuant to this chapter. (7) Nothing in this section shall preclude a city, county, or city and county from doing any of the following: (A) Requiring an applicant for a business license to operate a massage business or establishment to fill out an application that requests the applicant to provide relevant information. (B) Making reasonable investigations into the information so provided. (C) Denying or restricting a business license if the applicant has provided materially false information. (c) An owner or operator of a massage business or establishment subject to subdivision (b) shall be responsible for the conduct of all employees or independent contractors working on the premises of the business. Failure to comply with this chapter may result in revocation of the owner's or operator's certificate in accordance with Section 4603. Nothing in this section shall preclude a local ordinance from authorizing suspension, revocation, or other restriction of a license or permit issued to a massage establishment or business if violations of this chapter, or of the local ordinance, occur on the business premises. (d) Nothing in this section shall preclude a city, county, or city and county from adopting a local ordinance that is applicable to massage businesses or establishments described in paragraph ( 1) of http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdoclD=46298910499+0+0+0&WAISaction=retrieve Page 11 of 13 WAIS Document Retrieval 1/1/12 4:10 PM subdivision (b) and that does either of the following: ( 1) Provides that duly authorized officials of the city, county, or city and county have the right to conduct reasonable inspections, during regular business hours, to ensure compliance with this chapter, the local ordinance, or other applicable fire and health and safety requirements. (2) Requires an owner or operator to notify the city, county, or city and county of any intention to rename, change management, or convey the business to another person. (e) Nothing in this chapter shall be construed to preclude a city, county, or city and county from requiring a background check of an owner or operator of a massage establishment who owns 5 percent or more of a massage business or massage establishment and who is not certified pursuant to this chapter. The background check may consist of an application that requires the applicant to state information, including, but not limited to, the applicant' s business, occupation, and employment history for the five years preceding the date of application, the inclusive dates of same, and the name and address of any massage business or other like establishment owned or operated by any person who is subject to the background check requirement of this subdivision. 4613. (a) Nothing in this chapter shall restrict or limit in any way the authority of a city, county, or city and county to adopt a local ordinance governing any person who is not certified pursuant to this chapter. (b) Nothing in this chapter is intended to affect the practice rights of any person licensed by the state to practice or perform any functions or services pursuant to that license. 4614. The Legislature finds and declares that due to important health, safety, and welfare concerns that affect the entire state, establishing a uniform standard of certification and regulation of massage practitioners and massage therapists upon which .consumers may rely to identify individuals who have achieved specified levels of education, training, and skill is a matter of statewide concern and not a municipal affair, as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this chapter shall apply to all cities and counties, including charter cities and charter counties. 4615. This chapter shall be subject to the review required by Article 7.5 (commencing with Section 9147.7) of Chapter 1.5 of Part 1 of Division 2 of the Government Code. 4616. This chapter shall be liberally construed to effectuate its purposes. If any provision of this chapter or the application thereof to any person or circumstance is held to be invalid, the invalidity shall not affect other provisions or applications of the chapter that can be given effect without the invalid provision or application, http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdoclD=46298910499+0+0+0&WAISaction=retrieve Page 12 of 13 WAIS Document Retrieval 1/1/12 4:10 PM and to this end the provisions of this chapter are severable. 4620. This chapter shall remain in effect only until January 1, 2015, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2015, deletes or extends that date. http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdociD=46298910499+0+0+O&WA[Saction=retrieve Page 13 of 13 PLANNING COMMISSION RESOLUTION NO. 2596 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA, RECOMMENDING AMENDMENT OF PALM DESERT MUNICIPAL CODE REGARDING MASSAGE BUSINESS ZONING RESTRICTIONS. WHEREAS, the City of Palm Desert ("City") is authorized by the California Constitution and Government Code Section 51030 et seq., to regulate massage businesses by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of massage businesses; and WHEREAS, massage businesses and other specified personal or professional services businesses are businesses which involve significant intimate contact between persons, which create opportunities for acts of prostitution and other unlawful sexual activity to occur; and WHEREAS, in 2009, the Legislature passed Senate Bill 731 (Business & Professions Code Section 4600 et seq.) amended in 2011 by Assembly Bill 619 and again in 2012 by Senate Bill 1238, which in combination created a state-organized non-profit organization, the California Massage Therapy Council ("CAMTC"), that has regulatory authority over the certification of massage therapists and practitioners throughout the State of California; and WHEREAS, SB 731, AB 619, and SB 1238 imposed new limitations on the authority of local jurisdictions to enact or enforce regulations applicable to CAMTC certified individuals and massage establishments employing only those individuals and pre-empting the application of certain land use, zoning and facility requirements on such massage establishments while preserving local jurisdictions' authority to adopt and enforce certain business licensing and reasonable health and safety requirements for massage establishments and massage professionals; and WHEREAS, the City wishes to amend the Palm Desert Municipal Code to ensure that the City regulates massage therapists, massage establishments and other specified professional services businesses in compliance with the provisions of SB 731, AB 619, and SB 1238. NOW, THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION OF THE CITY OF PALM DESERT, CALIFORNIA AS FOLLOWS: SECTION 1. Section 25.04.171 of Chapter 25.04 (Definitions) of the Palm Desert Municipal Code is hereby added as follows: "Certified Massage Business(es) shall be defined by Palm Desert Municipal Code Section 5.87.030." SECTION 2. Section 25.10.030 is hereby amended to include: "H. Certified Massage Businesses." SECTION 3. Section 25.38.030 is hereby amended to include: "S. Certified Massage Businesses." PLANNING COMMISSIvim RESOLUTION NO. 2596 f SECTION 4. Compliance with California Environmental Quality Act Pursuant to state and local environmental regulations, it has been determined that the regulations encompassed in this Ordinance are not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. SECTION 5. General Plan Consistency Based on the entire record before the Planning Commission and all written and oral evidence presented, including the staff report and the findings made in this Ordinance, the Planning Commission of the City of Palm Desert hereby finds and determines that the proposed Ordinance is consistent with the goals and policies of the City of Palm Desert General Plan and is reasonably related to the public welfare of the citizens of the City and the surrounding region. Specifically, this Ordinance will help to reduce the likelihood of Massage Establishments to be used for illegal activity. PASSED, APPROVED AND ADOPTED at a regular meeting of the Planning Commission of the City of Palm Desert, California, on the 15th day of January, 2013 by the following roll call vote: AYES: CAMPBELL, DASH, DE LUNA, AND LIMONT NOES: NONE ABSENT: NONE ABSTAIN: NONE / 1 SONIA CAMPBELL, CHAIRPERS N ATTEST- LAURI AYLAIAN, SECRETARY CITY OF PALM DESERT, CALIFORNIA I I y 0 P 11 L M 0 1 1 k f v e 73-510 FRED WARING DRIVE PALM DESERT, CALIFORNIA 92260-2578 TEL- 760 346-o6ii FAX: 760 341-7098 i n{o@pal m-desert.o rg CITY OF PALM DESERT LEGAL NOTICE CONSIDERATION TO THE CITY COUNCIL BY THE PLANNING COMMISSION RECOMMENDING AN ORDINANCE TO AMEND CHAPTERS 5.87 AND 5.90 OF THE PALM DESERT MUNICIPAL CODE REGARDING MASSAGE ESTABLISHMENTS AND MASSAGE PRACTITIONERS. PROJECT DESCRIPTION: The Planning Commission will consider recommending amendment of the Palm Desert Municipal Code regarding massage business zoning restrictions. PROJECT LOCATION: Citywide, City of Palm Desert PUBLIC HEARING: SAID public hearing will be held on Tuesday, January 15, 2013 at 6:00 p.m. in the Council Chamber at the Palm Desert Civic Center, 73-510 Fred Waring Drive, Palm Desert, California, at which time and place all interested persons are invited to attend and be heard. Written comments concerning all items covered by this public hearing notice shall be accepted up to the date of the hearing. Information concerning the proposed moratorium is available for review in the Department of Community Development at the above address between the hours of 8:00 a.m. and 5:00 p.m. Monday through Friday. If you challenge the proposed actions in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the Planning Commission at, or prior to, the public hearing. PUBLISH: Desert Sun Lauri Aylaian, Secretary December 29, 2012 Palm Desert Planning Commission