HomeMy WebLinkAboutORD 1256ORDINANCE NO. 1256
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PALM
a 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, OR
CALIFORNIA, DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER
AS FOLLOWS:
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SECTION 1. Chapter 5.87 is hereby amended to read in full as shown in Exhibit
«A
SECTION 2. Chapter 5.90 is hereby amended to read in full as shown in Exhibit
im
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.
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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 t I th day of April , 2013, by the
following vote, to wit:
AYES: BENSON, TANNER, WEBER, and HARNIK
NOES: NONE
ABSENT: SPIEGEL
ABSTAIN: NONE
ATTEST:
RA LLE D. KLASS N, CITY CLERk
CITY OF PALM DESERT, CALIFORNIA
3
J C. HARNIK, YOR
ORDINANCE NO. 1256
Exhibit "A"
Chapter 5.87 MASSAGE BUSINESSES
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5.87.010 Title
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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 No
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 OR
current and valid unconditional State Certification.
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72500.00762\7542239.9
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.
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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:
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.
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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
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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.
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 no
the corporation exactly as shown in its articles of incorporation or charter together with the state
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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.
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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.
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ORDINANCE NO. 1256
Exhibit "A"
4. That the applicant has not made a material misrepresentation in this
00- 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
M-- 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.1(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
f 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.
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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). "so
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.
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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 Pq
application for Certificate of Registration or renewal. ew
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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.
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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. O.
D. A complete and proper appeal of the revocation or suspension of a Certificate of ••W
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.
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A. The City shall have the right to enter the premises from time to time during as
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
J
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.
.w. 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 on"
conjunction with a specific athletic event such as an outdoor road or bike race.
..r
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 a1
card in his or her possession while providing massage services. No
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; a"
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;
M
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.
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. ..i
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 ONR
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 NNW
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 0"
locked, with the exception of certain massage establishments envisioned under Subsection L.,
No
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
4W~ 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
4 - 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.
O. 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 +o"
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 .ow
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, on%
in a manner provided by law.
rr
72500.00762\7542239.9 17
ORDINANCE NO. 1256
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
ORDINANCE NO. 1256
Exhibit "B"
"City manager" means the city manager of the City of Palm Desert, or designee.
MER
"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 "No
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
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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.
.0
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:
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
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 01"
last application or renewal.
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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
W"
Notice of suspension or revocation of a Certificate of Registration — Individual shall
made in compliance with Section 5.87.130. r" r
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 menial
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, �1
whether acting as an individual, owner, employee of the owner, operator, or employee of the
ad
72500.00762\7545019.6 4
ORDINANCE NO. 1256 Exhibit "B"
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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.
72500.00762\7545019.6