Los Banos Municipal Code Art. 3 Regulation of Massage Establishments

(a) Except as otherwise provided in this chapter, no person may own or operate a massage establishment in the City unless the owner obtains, and continues to maintain, a current and valid massage establishment permit issued by the City.

(b) Any owner operating a massage establishment as of the effective date of this ordinance shall apply for a massage establishment permit on or before May 1, 2018, and may temporarily continue to operate subject to the provisions of this chapter until a massage establishment permit is either issued or denied by the City.

(§ 1, Ord. 1162, eff. March 7, 2018)

(a) The owner of a proposed massage establishment shall be the only person eligible to obtain a massage establishment permit for such business. The owner shall not be eligible to obtain a massage establishment permit unless the owner is at least 18 years of age. A separate permit is required for each massage establishment location.

(b) The following shall be submitted to the Community and Economic Development Department at the time of application for a massage establishment permit:

(1) A completed application form signed by: (i) the applicant; and (ii) either the record owner of the property or the lessor of the premises (if the business premises are leased to the applicant business) where the massage establishment is to be conducted. The application shall include the applicant's full legal name and contact information, the address where the applicant desires to do business, and such other information as the Community and Economic Development Department may reasonably require.

(2) Background Check. Each applicant shall submit the following:

(A) Information related to the applicant's business, occupation and employment history for the 10 years preceding the date of application, and the inclusive dates of same.

(B) The name and address of any massage business or other like establishment owned or operated by the applicant, the name of all partners and co-owners in each business, and a detailed description of any discipline, suspension or revocation for each such business.

(C) A description of any other business located in the City of Los Banos even if not massage related, that is owned or operated by the applicant.

(D) A description regarding any felony or misdemeanor convictions of the applicant and all owners within the last five years, any outstanding warrants for arrest and any pending criminal case.

(E) The applicant's fingerprints on a form provided by the Police Department. Any fees for the fingerprints and LiveScan shall be paid by the applicant.

(3) Two color photographs, taken within six months prior to the date of the application, that clearly show the applicant's face. Any fees for the photographs shall be paid by the applicant.

(4) A written description of the proposed massage establishment and how it will satisfy the requirements of this chapter.

(5) The register of massage therapists and practitioners required by Section 11-16.310 herein.

(6) A statement signed by the applicant certifying under penalty of perjury that all of the information submitted in connection with the application is true and correct.

(7) A nonrefundable application fee in an amount set by resolution of the City Council.

(c) The Director may request such other additional information and/or documentation as deemed necessary to determine whether the proposed business operations and premises comply with applicable local, State or Federal laws.

(d) Upon submittal of a complete application and payment of all applicable fees, the massage establishment permit application shall be reviewed by the Director and may be reviewed by any City department or any governmental agency deemed necessary by the Director, to determine if the business operations and premises to be occupied meet the requirements of Federal, State, or local laws. The Director may also refer to any governmental agency any information submitted by persons subject to the provisions of this chapter in connection with the conduct of a business regulated, or supervised, or otherwise the concern of any such agency, including agencies concerned with health regulations, zoning conformance, fire safety, police considerations or any other safeguard of the public interest. City personnel may investigate and inspect the premises of the business for the purpose of assuring that the premises comply with all applicable local and State laws.

(e) The Director shall make a determination to approve, conditionally approve or deny the massage establishment permit within a reasonable period of time after submittal of a complete application.

(f) Upon the approval of an application for a massage establishment permit and payment of the required fees, the Director shall issue a massage establishment permit to the applicant within 10 business days of approval.

(§ 1, Ord. 1162, eff. March 7, 2018)

(a) The Director may issue a massage establishment permit upon such conditions relating to the method or manner of operation of the business as he or she deems necessary to adequately protect members of the public in their patronage or dealings with the business or to reduce the incidence, detect the commission, or identify perpetrators of crime. Such conditions may be imposed at the time a massage establishment permit is initially issued, upon renewal of the permit, or at any time during the term of the permit. The conditions may include, but are not limited to, the following:

(1) No permittee, or any employee or independent contractor of a massage establishment, shall engage in, or allow, any of the acts prohibited by California Business and Professions Code Section 4609. A violation of that section shall be considered a violation of this chapter. A violation by an employee or independent contractor shall be deemed a violation by the massage establishment.

(2) Every massage establishment shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such business. The permit shall be displayed in a conspicuous place so that it may be readily seen by all persons entering the massage establishment.

(3) If an individual's CAMTC certification or City issued permit is suspended or revoked or if the individual is not CAMTC certified (excepting an exempt therapist), the massage establishment may not allow that person to provide massage services, including outcall massage services, at or through the massage establishment business.

(4) The massage establishment must notify the City immediately upon the establishment's notice of any disciplinary action taken by the CAMTC regarding one of the establishment's certified massage therapists or massage practitioners and submit a copy of any notice or order.

(5) Any act or omission of anyone providing massage at the establishment's location, whether as an employee or an independent contractor, which constitutes a violation of this chapter shall also be deemed to be an act or omission of the massage establishment.

(6) Compliance with all Federal, State and local laws, and the requirements of this chapter.

(7) The permittee shall have a valid and current City issued business license.

(§ 1, Ord. 1162, eff. March 7, 2018)

(a) No person shall operate a massage establishment under the authority of a massage establishment permit at any place other than the address of the massage establishment stated in the application for the permit. The Director may approve a change of location, provided the massage establishment complies with all ordinances and regulations of the City.

(b) No massage establishment permit issued pursuant to this chapter shall be transferable to any other person or entity.

(c) Any attempt to transfer a massage establishment permit is hereby declared invalid and the permit shall automatically become void effective the date of such attempted transfer.

(d) Nothing in this section shall prevent the Director from approving a second massage establishment permit for a single location provided that the holder of the massage establishment permit previously approved for such location consents in writing to the automatic expiration of such previously approved permit upon the effective date of such second permit.

(§ 1, Ord. 1162, eff. March 7, 2018)

(a) A massage establishment permit issued under this chapter shall be valid for one year from the date of issuance unless suspended or revoked.

(b) A holder of a massage establishment permit issued under this chapter shall submit an application for renewal no later than 30 calendar days prior to the expiration of the permit issued for such establishment. The renewal application shall be submitted together with a nonrefundable renewal fee in an amount established by resolution of the City Council. Applications for renewal of a massage establishment permit shall be processed in accordance with the procedures governing initial applications.

(§ 1, Ord. 1162, eff. March 7, 2018)

(a) The Director shall deny an initial application for a massage establishment permit or an application for renewal of a massage establishment permit on any of the following grounds:

(1) That the applicant, massage establishment, permittee, responsible person and/or owners of the massage business, have engaged in unlawful activity, or been convicted of any of the following offenses or convicted of an offense outside the State that would have constituted any of the following offenses if committed within the State:

(A) Penal Code Section 266i, 315, 316, 318 or 647(b) of the State or that the massage personnel or the owners of a massage establishment are required to register under Penal Code Section 290,

(B) Any felony offense involving the sale of a controlled substance specified in the Health and Safety Code Section 11054, 11055, 11056, 11057 or 11058,

(C) Any crime or unlawful activity, on the basis of which the Chief of Police reasonably concludes that by reason of the nature of the crime or activity, the applicant's operation of a massage establishment would pose a risk of harm to the public;

(2) That the applicant/responsible person, owners and/or employees of the massage business have engaged in unprofessional conduct, including but not limited to, personal conduct or operation of a business resulting in denial of a license or permit, revocation, suspension, restriction, or any other disciplinary action taken against an applicant, permittee, licensee, responsible person, owner and/or employee by the City, by the State, by any other governmental agency, or by CAMTC;

(3) That the massage establishment is not operated in a manner, or housed within a building, which complies with all City, State, Federal or otherwise applicable, codes, rules, regulations or laws, or CAMTC rules or regulations;

(4) That the applicant failed to provide information in connection with the application requested by the City, preventing the Director or the Chief of Police from making his or her determination as to suitability to conduct work at the business;

(5) That the applicant does not meet the qualifications necessary for issuance of a massage establishment license as required by this Code;

(6) That statements made in the application or any information submitted supplementary to the application are incorrect or untrue;

(7) That the responsible person is under the age of 18 years of age;

(8) That, based on specific facts identified by the Director, the Director reasonably concludes that the operation of the proposed massage establishment would pose a risk to the public, that the applicant would not conduct the business in a law abiding or professional manner, and/or that the operation of the proposed business would subject patrons of the business to a risk of harm or criminal, deceitful or otherwise unethical practices;

(9) That another massage establishment is or was operating at that same location and any of the following are true:

(A) The other business's massage establishment permit is suspended or was revoked or denied renewal for cause within the previous five years,

(B) The Director has served a notice of suspension, revocation, or denial of renewal regarding the other business's massage establishment license within the previous 15 days, or

(C) An appeal from a notice of suspension, revocation, or denial of renewal is pending;

(10) The applicant is found to have committed a crime involving moral turpitude that is substantially related to the business activity for which the massage establishment permit is being sought;

(11) The business or the activities or conduct of the business at the proposed fixed location is prohibited by any provision of this Code or any local, State or Federal law, statute, rule or regulation;

(12) The applicant has been convicted of or pled guilty or no contest to committing any act punishable as a sexually related crime or being required to register pursuant to the Sex Offender Registration Act (Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1 of the Penal Code); or is required to register as a sex offender in another State; or has been convicted of violating subdivision (b) of Section 647 of the Penal Code; or

(13) The prescribed fees for the application or renewal have not been paid.

(§ 1, Ord. 1162, eff. March 7, 2018)

(a) On determining that grounds for denial of an initial application or a renewal exist, the Director shall furnish written notice of the proposed denial to the applicant stating the reasons therefor, and serving the notice and a copy of this chapter or any otherwise applicable code sections, upon the applicant, in person or by regular mail. The applicant shall be given an opportunity to appear and meet with the Director contest the proposed decision to deny the application for the massage establishment permit and to show cause why the application for the massage establishment permit should not be denied.

(b) After holding the meeting described in subsection (a) herein, or if the applicant does not request a meeting, upon determining that there are sufficient grounds, the Director shall:

(1) Approve the application;

(2) Conditionally approve the application;

(3) Deny the application.

(c) The decision of the Director shall become effective 14 days following the date of service (either by regular mail or personally) upon the applicant of the notice of decision. If the applicant files an appeal within the time and manner prescribed, the permit (in the case of a renewal) shall remain in effect until the appeal is finally determined.

(d) After an establishment permit has been denied, no re-application for an establishment permit will be accepted within one year of the date of final determination from any person, applicant, owner, operator, manager, massage therapist, or any other person or persons, partnership, or corporation who was listed on an establishment permit or application unless the Director determines that the reason for denial has been cured and no longer exists.

(§ 1, Ord. 1162, eff. March 7, 2018)

The Director may revoke or suspend a massage establishment permit on any of the following grounds:

(a) That pursuant to Section 11-16.306, grounds for denial of an initial application for a massage establishment permit exist, including, but not limited to, untrue statements made in the application or conviction of a crime that would inhibit the person's ability to conduct the business in a law abiding manner; or

(b) The business has operated in a manner, or is housed on premises or within a building which violates or is in violation of any City, State, Federal, or otherwise applicable codes, rules, regulations or laws, or CAMTC rules or regulations, including, but not limited to, violations by the responsible person or employees; or

(c) The permittee has violated one or more conditions imposed upon the permit.

(§ 1, Ord. 1162, eff. March 7, 2018)

(a) On determining that grounds for permit suspension or revocation exist, the Director shall furnish written notice of the proposed suspension or revocation to the permittee stating the reasons therefor, and serving the notice and a copy of this chapter or any otherwise applicable code sections, upon the holder of the permit, in person or by regular mail. The permittee shall be given an opportunity to appear and meet with the Director contest the proposed decision to suspend or revoke the massage establishment permit and to show cause why the massage establishment permit should not be revoked or denied.

(b) After holding the meeting described in subsection (a) herein, or if the applicant does not request a meeting, upon determining that there are sufficient grounds, the Director shall:

(1) Issue a warning;

(2) Impose reasonable conditions on the permit;

(3) Suspend the permit for a specified period not to exceed six months;

(4) Revoke the permit.

(c) The decision of the Director shall become effective 14 days following the date of service (either by regular mail or personally) upon the permittee of the notice of decision. If the permittee files an appeal within the time and manner prescribed, the permit shall remain in effect until the appeal is finally determined. If the Director finds that it is necessary in order to protect against a serious and immediate threat to the health, safety or welfare of the public caused by exercise of the permit the revocation or suspension shall take effect immediately upon service of the notice.

(d) After an establishment permit has been revoked, no re-application for an establishment permit will be accepted within one year of the date of final determination from any person, applicant, owner, operator, manager, massage therapist, or any other person or persons, partnership, or corporation who was listed on an establishment permit or application unless the Director determines that the reason for revocation has been cured and no longer exists.

(§ 1, Ord. 1162, eff. March 7, 2018)

The holder of a massage establishment permit shall maintain a register of all certified massage therapists, certified massage practitioners and exempt therapists providing massage at the establishment, including independent contractors, and each such person's State certificate number, home address, date of hiring, and whether the massage therapist or massage practitioner will be performing outcall massages. An amended copy of the register shall be provided to the Director within five days of the date of hiring, commencement of services, or termination of services by each massage therapist or massage practitioner or exempt therapist at the establishment. Such filings shall be accompanied by a statement, signed by the owner, that all of the information in the register is true and correct.

(§ 1, Ord. 1162, eff. March 7, 2018)

A massage establishment, the owner and operator of a massage establishment, registered massage therapist, or practitioner, and City permitted therapist shall conduct the massage establishment business in a safe and sanitary manner, and shall comply with the following requirements:

(a) Compliance with Codes. Comply with all applicable building, fire, safety, health, electrical, plumbing, mechanical, heating and ventilating, sanitation, and other laws applicable to the premises.

(b) Maintenance of Permits. A copy of the establishment permit and each exempt massage therapist's permit or CAMTC certificate shall be posted in a conspicuous place on the establishment premises in such a manner that can be easily seen by persons entering the establishment. A passport-size photograph of the permittee or certificate holder shall be affixed to each massage therapist's permit or certificate.

(c) Posting of Services Offered. A list of all services available, the price thereof, and the length of time of each service shall be posted or available in a conspicuous place in such a manner that it can be easily viewed by persons entering the massage establishment. No services, other than those set forth on the list, shall be provided.

(d) Payment. All payments for massage services, including gratuities or tips, shall be made at a designated reception area exclusively. At least one sign, with lettering not less than one-half inch in height, shall be posted in a conspicuous place in such a manner that it can be easily seen by persons entering the establishment stating, "All payments for massage services, including gratuities or tips, shall be made in the designated reception area exclusively." This provision shall not apply to one-room massage establishments that do not have a reception area.

(e) Alcohol and Marijuana Prohibited. No alcoholic beverages or marijuana shall be sold, served, furnished, kept, or possessed in any part of a massage establishment. The owner, operator, and managing employee shall be responsible to ensure that no person possesses alcoholic beverages or marijuana inside the massage establishment.

(f) Payroll and Other Written Records. Every massage establishment shall maintain payroll and written records of all business transactions. The written records shall include at a minimum the type of service provided, the date and hour the service is provided, and the name of the massage therapist administering the service. These records shall be kept on the premises and shall be open to inspection by officials charged with enforcement of this chapter, including the Director or his or her designee. These records shall be retained for a period of at least two years.

(g) Advertising. No services shall be offered in signs, posters, flyers, newspapers or other printed advertisements, or in verbal or recorded announcements or messages, other than those lawfully permitted and posted as required in subsection (b) of this section. Photographs, drawings, written or verbal statements used in any advertising shall not explicitly or implicitly communicate that services offered are for the purpose of sexual stimulation or gratification.

(h) Compliance with SB 577. Massage establishments and massage therapists shall comply with the requirements of Business and Professions Code Sections 2053.5 and 2053.6 pertaining to disclosure and acknowledgment that massage services are not being provided by a licensed physician, are not licensed services by the State, the qualifications of the person providing the massage services, and those other matters as set forth in the statutes.

(i) Compliance with AB 1147. Massage establishments and massage therapists shall comply with the requirements of the Massage Therapy Act, Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code.

(j) Prohibition Against Residence; Sleeping Quarters. No person(s) shall reside either on a temporary or permanent basis on or within the premises of a massage establishment. Sleeping quarters shall not be provided on the premises to any person, owner, employee, and or independent contractor.

(§ 1, Ord. 1162, eff. March 7, 2018)

The City may inspect the premises at the time of permitting a massage establishment, and may make periodic, reasonable inspections of the establishment during normal business hours to assure compliance with CAMTC requirements, this chapter and applicable fire, health and safety requirements. If any violations are found, the City shall notify the holder of the massage establishment permit in writing. The City may give the establishment 10 days to correct the violation(s), or, if the violation(s) presents a danger to public health or safety, close the establishment until the violation(s) is corrected.

(§ 1, Ord. 1162, eff. March 7, 2018)

No massage establishment and no registered massage therapist or practitioner, or City permitted massage therapist may provide massage service between the hours of 10:00 p.m. and 7:00 a.m. Clients and visitors shall be excluded from a massage establishment during those hours.

(§ 1, Ord. 1162, eff. March 7, 2018)

The Community and Economic Development Department shall coordinate with CAMTC, including maintaining a list of certified therapists and practitioners practicing in the City, maintaining a list of massage establishments operating in the City, receiving notices and information from CAMTC, and notifying CAMTC of any arrest or conviction of Penal Code section 647 or other act punishable as a sexually related crime.

(§ 1, Ord. 1162, eff. March 7, 2018)

Any place where lewdness, or prostitution occurs is a public nuisance which may be abated and permanently enjoined, and for which the City may recover damages from the property owner, as well as from the person conducting or maintaining the nuisance.