Mission Viejo Municipal Code Div. 2 Massage Establishments

Footnotes:

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Editor's note— Ord. No. 94-130, § 1, adopted Feb. 14, 1994, amended former Div. 2, §§ 5.03.210—5.03.220, relative to public baths, massage parlors, and massagists, to read as herein set out in this Div. 2. The provisions of former Div. 2 derived from Ord. No. 88-12, § 4(5-3-1—5-3-3), adopted June 27, 1988.

State Law reference— Authority to regulate, Government Code § 51030 et seq.

For the purposes of the provisions regulating massage establishments and similar businesses hereinafter set forth, unless the context clearly requires a different meaning, the words, terms and phrases set forth in this section shall have the meanings herein set forth.

(1) Conviction or convicted means a plea or verdict of guilty or a conviction following a plea of nolo contendere.

(2) License means the license to operate a massage establishment as required by this division.

(3) Massage establishment means any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, joint venture or combination of individuals engaged in, conducts, carries on or permits to be engaged in, conducted or carried on for consideration, massages, baths, or health treatments involving massages, or baths as regular functions.

(4) Massage means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus, or other appliances or devices, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations.

(5) Massage technician means any person who administers massages, baths, or health treatments involving massages or baths as the principal functions to another person for any consideration whatsoever.

(6) Massage practitioner means a nonmedical health care practitioner who uses a massage specialty and health enhancement approach in caring for clients.

(7) Permit means the permit to engage in the activities of a massage required by this division.

(8) Person means any individual, firm, association, partnership, corporation, joint venture or combination of individuals.

(9) Person who has engaged in disqualifying conduct means a person who:

a. Within eight years immediately preceding the date of filing of the application in question or, in the case of revocation or suspension proceedings, within eight years of the date of notice of hearing pursuant to section 5.03.248, has been convicted in a court of competent jurisdiction of:

(i) Any misdemeanor or felony offense which relates directly to the operation of a massage establishment, whether as a massage establishment owner or operator, or as a massage technician, or as a massage practitioner; or

(ii) Any felony the commission of which occurred on the premises of a massage establishment; or

b. Within eight years immediately preceding the date of the filing of the application in question or, in the case of revocation or suspension proceedings, within eight years of the date of notice of revocation or suspension hearing, whichever is applicable, has had any massage establishment, operator, technician, practitioner, or trainee license or permit, which was issued by the state or any county or city, revoked; or

c. Within eight years immediately preceding the date of the filing of the application, or in the case of revocation or suspension proceedings, within eight years of the date of notice of revocation or suspension hearing, whichever is applicable, has been convicted in a court of competent jurisdiction of:

(i) Any violation of § 266(h), 266(i), 315, 316, 318 or subdivision (b) of § 674 of the California Penal Code; or

(ii) Conspiracy of attempt to commit any such offense; or

(iii) Any offense in a jurisdiction outside the state which is the equivalent of any of the aforesaid offenses; or

(iv) Any felony offense involving the sale of a controlled substance specified in § 11054, 11055, 11057 or 11058 of the California Health and Safety Code; or

d. Is required to register under the provisions of § 290 of the California Penal Code; or

e. Has been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to §§ 11225 through 11235 of the California Penal Code, or any similar provisions of law in a jurisdiction outside the state, or

f. Has engaged in conduct which would constitute an offense as described in paragraphs a. or c. of this subsection, within eight years immediately prior to the filing of any application, or within eight years of the date of notice of revocation or suspension, whichever is applicable.

g. Has been convicted of a felony involving an act or acts of moral turpitude or an act or acts of violence, which act or acts are substantially related to the qualifications, functions, or duties of the massage establishment, massage technician, or massage practitioner.

(10) Recognized school of massage means any school or institution of learning which teaches the theory, ethics, practice, profession and work of massage, which school or institution of learning requires a residence course of study of not fewer than 500 hours to be given in not more than three calendar months before the student shall be furnished with a diploma or certificate of graduation from such school or institution of learning following the successful completion of such course of study or learning, and which school has been approved pursuant to the provisions of the California Education Code, or, if said school is not located in California, has complied with standards commensurate with those required in this section and has obtained certification under any similar state certification program, if such exists. Any school or institution of learning offering or allowing correspondence course credit not requiring actual attendance at class, or courses of a massage technician not approved by the California Department of Education shall not be deemed a "recognized school of massage."

(11) State or national organization devoted to the massage specialty and therapeutic approach means an organization which the director of community development determines meets each of the following requirements:

a. Has tax exempt status under section 501(c) of the Internal Revenue Code.

b. The organization or association requires that its members meet minimum educational requirements. The educational requirements must include at least 500 classroom hours, or its equivalent, in anatomy, physiology, hygiene, sanitation, massage practice, and ethics of massage practice.

c. The organization or association requires participation in continuing education programs as a condition of continuing membership.

d. The organization or association has established rules of ethics and has enforcement procedures for the suspension and revocation of membership of persons violating the rules of ethics.

e. The organization is open to members of the general public meeting the requirements for membership on either a statewide or national basis and, in fact, maintains a membership which reflects substantial statewide or national participation by persons engaged in the business of therapeutic massage.

(Ord. No. 94-130, § 1, 2-14-94; Ord. No. 06-242, § 2, 5-15-06)

It shall be unlawful for any person as owner, or operator, to engage in, conduct or carry on, in or upon any premises within the city the operation of a massage establishment without a massage establishment license obtained from the community development director as required by this division. A separate license shall be obtained for each separate massage establishment operated by such person. Upon payment of the appropriate license application fee a massage establishment license shall be issued to any person who has complied with the requirements of this division, and all other applicable provisions of the Mission Viejo Municipal Code, unless grounds for denial of such license are found to exist.

(Ord. No. 94-130, § 1, 2-14-94)

Any application for a license to operate a massage establishment shall be accomplished by a nonrefundable fee, in an amount established by resolution of the city council. The application fee shall be used to defray the costs of investigation and report. A license to operate a massage establishment shall be renewed annually. The licensee shall pay a renewal fee for such renewal, in an amount established by city council resolution.

(Ord. No. 94-130, § 1, 2-14-94)

(a) No person shall operate any massage establishment prior to having obtained a massage establishment license pursuant to this division. Any application for a massage establishment license shall be made with the city director of community development or designee (hereinafter "director").

(b) The application shall set forth the exact nature of the massage, bath or health treatments to be administered, the proposed place of business and facilities therefor, and the name and address of the applicant. The applicant must be required to furnish fingerprints for purposes of establishing identification. The applicant shall also furnish the following information:

(1) The previous addresses of applicant, if any, for a period of five years immediately prior to the date of the application and the dates of residence at each;

(2) Written proof that the applicant is at least 18 years of age;

(3) The history of the applicant as to the operation of any massage establishment or similar business or occupation within five years immediately preceding the filing of the application. Such information shall include, but shall not be limited to, a statement as to whether or not such person, in previously operating a massage establishment within this state under a permit or license, has had such permit or license revoked or suspended, and the reasons therefor; and the business, activity or occupation the license applicant engaged in subsequent to such action of revocation or suspension;

(4) All criminal convictions or offenses described in section 5.03.200; whether the applicant is required to register under the provisions of § 290 of California Penal Code; whether the applicant, including a corporation or partnership, or a former employer of the applicant while or employed, or a building in which the applicant was so employed or a business conducted, was ever subjected to an abatement proceeding under §§ 11225 through 11235 of the California Penal Code or any similar provisions of law in a jurisdiction outside the State of California;

(5) Applicant's height, weight, color of eyes and hair;

(6) Two prints of a recent passport-size photograph of applicant;

(7) Business, occupation or employment history of the applicant for the five years immediately preceding the date of the application;

(8) If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation, together with the names and residence addresses of each of its officers, directors, and each stockholder holding more than five percent of the stock of the corporation, along with the amount of stock held. If the applicant is a partnership, the application shall set forth the name and residence addresses of each of the partners, including limited partners. If one or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant shall apply;

(9) The names and residence addresses of all persons currently employed or intended to be employed in the massage establishment, regardless of the nature of the employment, including the names and addresses of any person licensed pursuant to sections 5.03.226 and 5.03.232, along with the proposed or actual nature of the work performed or to be performed, and recent passport-sized photographs, suitable to the director processing the application, of each such employee. The director shall require such employees to furnish fingerprints for the purpose of establishing identification. Any applicant or licensee shall notify the city in writing of the names, addresses and nature of the work, or any new employees, within five days of such employment, and supply the photographs described in this subsection. Such new employees shall allow fingerprints to be taken for the purpose of identification upon request. "Employee" includes every owner, partner, manager, supervisor and worker, whether paid or not, who renders personal services of any nature in the operation of a massage establishment;

(10) Such other information as may be deemed necessary by the director;

(11) A statement in writing by the applicant that he or she certifies under penalty of perjury that the foregoing information contained in the application is true and correct, said statement being duly dated;

(12) Authorization for the city, its agents and employees to seek information and conduct an investigation into the truth of the statements set forth in the application and the qualifications of the application for the license.

(Ord. No. 94-130, § 1, 2-14-94)

(a) Within 60 working days following receipt of a completed application, the director shall either issue the license or mail a written statement of his or her reasons for denial thereof.

(b) The director shall deny a license to the license applicant where any of the following findings exist:

(1) [Material misstatements.] The applicant has made one or more material misstatements in the application for a license; or

(2) [Disqualifying conduct.] The applicant, if an individual; or the stockholders holding more than five percent of the stock of the corporation; the officers and directors, and each of them, if the applicant be a corporation, or the partners, including limited partners, and each of them, if the applicant be a partnership; and the manager or other person principally in charge of the operation of the business, or any such individuals, is a person who has engaged in disqualifying conduct, in the past five years, as described in paragraph (9) section 5.03.200; or

(3) [Compliance with applicable laws.] The massage establishment, as proposed by the license applicant, if permitted, would not comply with all the applicable laws, including, but not limited to, all the city's building, fire, zoning, and health regulations; or

(4) [Background, qualifications.] The applicant is lacking in the background and qualifications to conduct a bona fide massage establishment; or

(5) [Disqualifying conduct of employees.] Any persons to be employed by applicant are persons who have engaged in disqualifying conduct as described in subsection 5.03.200(9); or

(6) [Violation of regulations.] The applicant has violated any provision of this division, or any similar ordinance, law, rule, or regulation of any other public agency which regulates the operation of massage establishments; or

(7) [Applicant under age.] The applicant is less than 18 years of age.

(8) Mandatory license denial. Notwithstanding any other provision of this Code, a massage license shall be denied upon a showing by the city of proof that any of the massage personnel or any of the owners or operators of the proposed massage business are required to register under the provisions of California Penal Code § 290.

(Ord. No. 94-130, § 1, 2-14-94; Ord. No. 06-242, § 3, 5-15-06)

All massage establishments shall comply with the following facilities and operations requirements:

(1) Massage establishments shall comply with all applicable Code requirements.

(2) A minimum of one toilet and wash basin, shall be provided in every massage establishment.

(3) Cabinets or other covered space shall be provided for the storage of clean linen. Approved receptacles shall be provided for the storage of all soiled linen and paper towels.

(4) Minimum ventilation shall be provided in accordance with the applicable building code of the city. To allow for adequate ventilation in cubicles, rooms and areas provided for patrons' use, which are not serviced directly by required windows or mechanical systems of ventilation, partitions shall be constructed so that the height of partition does not exceed 75 percent of the floor-to-ceiling height of the area in which they are located.

(5) All plumbing and electrical installations shall be installed under permit and inspection of the buildings inspection department, and such installations shall be installed in accordance with the applicable Uniform Building Code, Uniform Plumbing Code and other applicable codes.

(6) The walls in all rooms where water or steam baths are given shall have a washable, mold-resistent surface.

(7) All lavatories or wash basins shall be provided with hot and cold running water, soap and single service towels in wall-mounted dispensers.

(8) All massage establishments shall be provided with clean and sanitary towels, sheets and linens in sufficient quantity. Towels, sheets and linens shall not be used by more than one person. Reuse of such linen is prohibited unless the same has first been laundered. Heavy white paper may be substituted for sheets; provided that such paper is used once for each person and then discarded into a sanitary receptacle.

(9) All walls, ceilings, floors, pools, showers, bathtubs, steamrooms and all other physical facilities including appliances and apparatuses for the establishment must be in good repair and maintained in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments and toilet rooms shall be thoroughly cleaned and disinfected each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected after each use.

(10) Disinfecting agents and sterilizing equipment shall be provided for any instruments used in performing acts of massage and said instruments shall be disinfected and sterilized after each use.

(11) Pads used on massage tables shall be covered with durable, washable plastic or other acceptable waterproof material.

(12) To assure patrons' health, safety, sanitation and comfort, all employees, massage technicians and massage practitioners shall be clean and dressed appropriately when performing services upon the premises. All patrons shall be appropriately draped while receiving such services.

(13) Each service offered, the price thereof, and the minimum length of time such service shall be performed shall be posted in a conspicuous public location in each massage establishment. All letters and numbers shall be capitals, and not less than one inch in height. No services shall be performed and no sums shall be charged for such services other than those posted. All arrangements for services to be performed shall be made in a room in the massage establishment which is not used for administration of massages, baths or health treatments, unless no other room exists in the establishment. No massage technician shall, after the commencement of any service for any patron, advise, suggest or otherwise indicate to such patron that any additional service is available, or ask or inquire of such patron whether such patron desires any additional service to be performed. No massage technician shall perform any service for any patron which was not ordered by such patron prior to the commencement of performance of any service rendered.

(14) No massage establishment shall be kept open for business between the hours of 9:00 p.m and 7:00 a.m.

(15) No alcoholic beverages shall be sold, served, furnished, kept or possessed on the premises of any massage establishment.

(16) Any massage establishment must be operated on a premises where a physician, surgeon, chiropractor or osteopath duly licensed to practice their respective professions in the State of California is located; or, such duly licensed massage establishment is conducted under the direct supervision or written referral signed by such physician, surgeon, chiropractor or osteopath.

(17) Notwithstanding the requirements set forth under section 5.03.210(16), a massage practitioner may conduct off-site massages only when such massage is specifically prescribed in writing by a physician, surgeon, chiropractor or osteopath duly licensed to practice in the State of California. No additional massage service shall be performed for any patron beyond that service which is specifically described in the writing whether such patron desires any additional service to be performed. A massage practitioner permit may be suspended or revoked for off-site massages based upon any of the grounds set forth at section 5.03.246. A massage technician shall not conduct off-site massages under any circumstances.

(Ord. No. 94-130, § 1, 2-14-94)

Each owner or operator of a massage establishment legally doing business on the effective date of this division shall apply for a massage establishment license not later than 90 days therefrom, and shall comply with all requirements which are prerequisites for issuance of a license before such a license will issue.

(Ord. No. 94-130, § 1, 2-14-94)

Any and all investigating officials of the city shall have the right to enter massage establishments from time to time during regular business hours to make reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing or health regulations, and to ascertain whether there is compliance with the provisions of this division.

(Ord. No. 94-130, § 1, 2-14-94)

Whenever the director or his or her authorized representative, makes an inspection of a massage establishment and finds that any provision of this division has been violated, the director shall give notice of such violation by means of an inspection report or other written notice. In any such notification, the director shall:

(1) Set forth the specific violation or violations found;

(2) Establish a specific and reasonable period of time for the correction of the violation or violations. If the director determines that the violation or violations are minor in nature, the director may issue a warning to the licensee or permittee, that any further violation of this division may result in the filing of a complaint for revocation or suspension of the license or permit;

(3) State that failure to comply with any notice issued in accordance with the provisions of this division may result in the director filing a complaint for revocation or suspension of the license or permit.

(Ord. No. 94-130, § 1, 2-14-94)

No person licensed to operate a massage establishment shall operate under any name or conduct business under any designation not specified in the license.

(Ord. No. 94-130, § 1, 2-14-94)

Upon a change of location of a massage establishment, an application to the director shall be made, and such application shall be granted, provided all applicable provisions of this division are complied with, and a change of location fee in an amount established by city council resolution to defray the costs of investigation and report has been paid to the city. This provision shall not be construed to waive any other requirement of this Code that may be applicable to establishing a massage establishment at any new location.

(Ord. No. 94-130, § 1, 2-14-94; Ord. No. 06-242, § 4, 5-15-06)

A sale or transfer of any interest in a massage establishment, which interest would be reported as required in this division upon application for a massage establishment license, shall be reported to the director within ten days of such sale or transfer. The director shall investigate any person receiving any interest in a massage establishment as a result of such sale or transfer, and if such person satisfies the requirements relating to massage establishment license applicants, the existing license shall be endorsed to include such person. A fee as set forth by resolution of the city council shall be paid to the city for the investigation by the director necessitated by each such sale or transfer.

(Ord. No. 94-130, § 1, 2-14-94)

The owner or operator of a massage establishment shall display the massage establishment license and the permit of each and every massage technician or practitioner employed in the establishment in an open and conspicuous place on the premises. Passport-size photographs of the licensee and permittee shall be affixed to the respective license and permits on display pursuant to this section.

(Ord. No. 94-130, § 1, 2-14-94)

(a) It shall be unlawful for any person to act as a massage technician unless such person holds a valid permit issued by the director.

(b) A massage technician permit shall be issued to any person who has fulfilled the requirements of section 5.03.230, and all other applicable provisions of this division, unless grounds for denial of such permit are found to exist. The director may deny a permit to the permit applicant if:

(1) The applicant made a material misstatement in the application for a license; or

(2) The applicant is a person who has engaged in disqualifying conduct, as described in subsection 5.03.200(9); or

(3) The applicant has violated any provision of this division, or of any similar ordinance, law, rule or regulation of another public agency which regulates the operation of massage technicians; or

(4) The applicant has failed to meet the training requirements described in section 5.03.230; or

(5) The applicant has failed to furnish an appropriate medical doctor's certificate as required by section 5.03.230.

(Ord. No. 94-130, § 1, 2-14-94; Ord. No. 06-242, § 5, 5-15-06)

Any application for a massage technician permit shall be accompanied by a nonrefundable fee. A massage technician permit shall be renewed annually and a renewal fee shall be paid. The massage technician permit fee and the renewal permit fee shall be in amounts as determined by city council resolution. Any person who applies for a massage establishment license and who desires to act as a massage technician within said establishment shall not be required to pay the fee required by this section but shall be required to furnish the materials and information set forth in section 5.03.206, and to show qualifications for, and to obtain, a massage technician permit.

(Ord. No. 94-130, § 1, 2-14-94)

(a) Any application for a massage technician permit shall be made with the director.

(b) Within 60 working days following receipt of a completed application, the director shall either issue the permit, or mail a written statement of his or her reasons for denial thereof. The director shall require that the applicant furnish fingerprints for the purpose of establishing identification. The applicant shall furnish information similar to that required under subsections 5.03.206 (b)(1), (2), (4), (5), (6), (7), (10), (12), and the following information:

(1) Social Security number and driver's license number, if any;

(2) The name and address of the establishment where the applicant is to be employed, or engage in the practice of massage if self-employed; and the name of the owner or operator of the same. Any massage technician granted a permit pursuant to this section must report any change in massage establishment employment within five days of said change;

(3) The name and address of the recognized school of massage attended, the dates attended, and a copy of the diploma or certificate of graduation awarded the applicant showing the applicant has completed no fewer than 500 hours of instruction. All applicants may be required to furnish additional evidence of enrollment and attendance of the required class hours and are subject to an oral interview by the director to establish the bona fide completion of educational requirements. The requirement for no fewer than 500 hours of instruction shall apply to all permit applications filed after the effective date of the ordinance adopting this section, but shall not apply to renewal of permits previously issued.

(4) Certificate from a medical doctor stating that the applicant has, within 30 days immediately prior to the filing of the application, been examined and found to be free from any contagious or communicable disease capable of being transmitted to the public or to fellow employees by the type of conduct and interaction with fellow employees and the public involved in the performance of the job of massage technician.

(5) A statement in writing by the applicant made under penalty of perjury that the information furnished is true and correct, said statement being duly dated.

(Ord. No. 94-130, § 1, 2-14-94; Ord. No. 06-242, § 6, 5-15-06)

(a) It shall be unlawful for any person to act as a massage practitioner unless such person holds a valid permit issued by the director.

(b) A massage practitioner permit shall be issued to any person who has fulfilled the requirements of section 5.03.236, and all other applicable provisions of this division, unless grounds for denial of such permit are found to exist. The director may deny a permit to the permit applicant if:

(1) The applicant made a material misstatement in the application for a license; or

(2) The applicant is a person who has engaged in disqualifying conduct, as described in subsection 5.03.200(9); or

(3) The applicant has violated any provision of this division, or of any similar ordinance, law, rule or regulation of another public agency which regulates the operation of massage practitioners; or

(4) The applicant has failed to meet the training requirements described in section 5.03.236; or

(5) The applicant has failed to furnish an appropriate medical doctor's certificate as required by section 5.03.236.

(Ord. No. 94-130, § 1, 2-14-94; Ord. No. 06-242, § 7, 5-15-06)

Any application for a massage practitioner permit shall be accompanied by a nonrefundable fee. A massage practitioner permit shall be renewed annually and a renewal fee shall be paid. The massage practitioner permit fee and the renewal permit fee shall be in amounts as determined by city council resolution. Any person who applies for a massage establishment license and who desires to act as a massage practitioner within said establishment shall not be required to pay the fee required by this section but shall be required to furnish the materials and information set forth in section 5.03.206, and to show qualifications for, and to obtain, a massage practitioner permit.

(Ord. No. 94-130, § 1, 2-14-94)

(a) Any application for a massage practitioner permit shall be made with the director.

(b) Within 60 working days following receipt of a completed application, the director shall either issue the permit, or mail a written statement of his or her reasons for denial thereof. The director shall require that the applicant furnish fingerprints for the purpose of establishing identification. The applicant shall furnish information similar to that required under subsections 5.03.206(b)(1), (2), (4), (5), (6), (7), (10), (12), and the following information:

(1) Social Security number and driver's license number, if any;

(2) The name and address of the establishment where the applicant is to be employed, or engage in the practice of massage if self-employed; and the name of the owner or operator of the same. Any massage practitioner granted a permit pursuant to this section must report any change in massage establishment employment within five days of said change.

(3) The applicant shall present to the director proof of membership in good standing of a state or national organization devoted to the massage specialty and health enhancement approach or has completed any one of the following requirements:

(i) No fewer than 1,000 hours of instruction in the massage specialty and health enhancement approach at a recognized school of massage with a state approved curriculum and can submit a sworn affidavit of code of ethics to which they will adhere. This code can be from an association or comparable as approved by the city attorney; or

(ii) No fewer than 500 hours of such instruction as required under (i) above, and, in addition, 500 hours of practical experience in the massage specialty and health enhancement therapeutic approach in the form of paid employment as documented by Internal Revenue Service (IRS) tax returns or other affidavit and submission of a sworn affidavit of code of ethics as in (i) above; or,

(iii) No fewer than 500 hours of such instruction as required under (i) above, and proof of 500 hours additional instruction in any one of the following:

a. Continuing educational classes in the massage field and related classes offered by approved schools; or

b. Classes and workshops as in subsection a. approved for nursing CE credit; or

c. Programs as in subsection a. approved and certified by qualifying professional associations; or

d. Adult education classes in massage and related topics offered through state approved colleges and universities; or

(iv) Has passed an independently prepared and administered national certification exam which has been recognized by objective standards to fairly evaluate professional levels of skill, safety and competence.

(v) The requirement for no fewer than 1,000 hours of instruction or equivalent experience as provided by subsections (ii) and (iii) above, shall apply to all permit applications filed after the effective date of this section, but shall not apply to renewal of permits previously issued.

(4) Certificate from a medical doctor stating that the applicant has, within 30 days immediately prior to the filing of the application, been examined and found to be free from any contagious or communicable disease capable of being transmitted to the public or to fellow employees by the type of conduct and interaction with fellow employees and the public involved in the performance of the job of massage practitioner.

(5) A statement in writing by the applicant made under penalty of perjury that the information furnished is true and correct, said statement being duly dated.

(Ord. No. 94-130, § 1, 2-14-94; Ord. No. 06-242, § 8, 5-15-06)

All appeals from a denial of a massage establishment license or permit for massage technician or practitioner shall be made in accordance with the provisions of section 5.02.140 of this division.

(Ord. No. 94-130, § 1, 2-14-94)

(a) This division shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions:

(1) Physicians, surgeons, chiropractors, or osteopaths, who are duly licensed to practice their respective professions in the State of California, while performing activities encompassed by such professional licenses;

(2) Nurses or physical therapists who are duly licensed to practice their professions in the State of California, while performing activities encompassed by such professional licenses.

However, any one duly exempted under this subparagraph (a) employing or utilizing either a massage technician or massage practitioner for the purpose of furnishing a massage shall be required to obtain a massage establishment license and any required practitioner and/or technician permit(s).

(b) Individuals administering massages or health treatment involving massage to persons participating in road races, track meets, triathalons and similar single occurrence athletic or recreational events; provided, that all of the following conditions are met:

(1) The massage services are made equally available to all participants in the event.

(2) The event is open to participation by the general public or a significant segment of the public such as employees of sponsoring or participating corporations.

(3) The massage services are provided at the site of the event and either during, immediately preceding or immediately following the event.

(4) The sponsors of the event have been advised of and have approved the provision of massage services.

(5) The persons providing the massage services are not the primary sponsors of the event.

(Ord. No. 94-130, § 1, 2-14-94)

A massage establishment may be permitted in an athletic club or similar establishment provided such massage operations are incidental to the operation of such bona fide athletic club and such athletic club has a valid conditional use permit approved by the planning commission which identified the massage establishment. Any massage establishment duly authorized to operate under the provisions of this section must comply with all the provisions of this division with the exception of the supervision requirement set forth in section 5.03.210(a)(16).

(Ord. No. 94-130, § 1, 2-14-94)

After an investigation, notice and hearing, any license issued for a massage establishment may be revoked or suspended by the director where any of the following is found:

(1) The licensee has violated any provisions of this division; or

(2) The licensee is a person who has engaged in disqualifying conduct, as described in subsection 5.03.200(9); or

(3) The licensee has failed to comply with one or more of the facilities and operations requirements of section 5.03.210; or

(4) The licensee has engaged in fraud, misrepresentation or false statement in conducting the massage establishment; or

(5) The licensee has continued to operate the massage establishment after the license has been suspended; or

(6) The licensee has allowed a person to work as a massage technician or practitioner who:

a. Does not have a valid permit; or

b. Has engaged in conduct or has been convicted of an offense described in subsection 5.03.200(9) where the licensee has actual or constructive knowledge of such conduct or conviction.

(Ord. No. 94-130, § 1, 2-14-94; Ord. No. 06-242, § 9, 5-15-06)

After an investigation, notice and hearing, any massage technician or practitioner permit may be revoked or suspended by the director where it is found that:

(1) The permittee has violated any provision of this division; or

(2) The permittee is a person who has engaged in disqualifying conduct, as described in subsection 5.03.200(9); or

(3) The permittee has continued to function as a massage technician or practitioner after the permit has been suspended; or

(4) The permittee has failed to comply with the requirements of either section 5.03.230 or section 5.03.236, whichever is applicable; or

(5) The permittee has made a material misstatement in the application for a permit.

(Ord. No. 94-130, § 1, 2-14-94; Ord. No. 06-242, § 10, 5-15-06)

Upon determining that grounds for revocation or suspension exist, as set forth in sections 5.03.244 and/or 5.03.246, the director shall furnish written notice of the proposed revocation or suspension to the licensee. For purposes of this section only, "licensee" shall include a person holding a massage establishment license, a massage technician permit or massage practitioner permit. Such notice shall summarize the principal reasons for the proposed revocation or suspension; shall state that the licensee may request a hearing within 15 calendar days of the postmarked date on the notice; and shall be delivered both by posting the notice at the location of the massage establishment and by sending the notice by certified mail, postage prepaid, addressed to the licensee as that name and address appear on the license. Within 15 calendar days after the later of the mailing or posting of the notice the licensee may file a request for hearing with the director. If the request for a hearing is filed within 15 calendar days of the mailing or posting of the notice referred to herein, the director shall transmit the request to the planning commission, and the hearing shall be provided.

Upon receipt of a written request for a hearing, the planning commission shall conduct a hearing. The planning commission shall conduct a hearing within 45 calendar days of the filing of such request by the licensee. Notice of time and place of the hearing shall be given to the licensee by personal service or via certified mail, postage prepaid, at least 15 calendar days in advance of the date set for the public hearing. At the hearing, the licensee and the city shall be entitled to present relevant evidence, testify under oath and call witnesses who shall testify under oath. The planning commission shall not be bound by the statutory rules of evidence in the hearing, except that hearsay evidence may not be the sole basis for the determination of the planning commission.

At the conclusion of the hearing, the planning commission shall decide whether the grounds for revocation or suspension exist and shall submit a written report to the director. Such written report shall contain a brief summary of the evidence considered and shall state findings, conclusions and directives to the director regarding whether the license is to be revoked or suspended. All such reports shall be filed with the city clerk and shall be public records. A copy of such report shall be forwarded by certified mail, postage prepaid, to the licensee on the day it is filed with the city clerk. If the planning commission determines that any grounds for revocation or suspension exist, as provided in sections 5.03.244 and/or 5.03.246 of this division, the director, based upon the report of the planning commission or, if no hearing was requested by the licensee, based upon the report of the city staff, shall immediately revoke or suspend the appropriate license(s). The decision of the planning commission shall be appealable to the city council by the filing of a written appeal with the city clerk within 15 calendar days following the date of mailing of such decision. A timely filed appeal shall vacate the decision of the planning commission. Any such appeal shall be a de novo public hearing held in the manner and within the time limitations set forth in section 9.60.012 of the Mission Viejo Municipal Code. The decision of the city council upon appeal, or the decision of the planning commission in the absence of a timely appeal, shall be final and conclusive.

(Ord. No. 94-130, § 1, 2-14-94)

An applicant for either a license or a permit under this division whose application for such license or permit has been denied may not reapply for such license or permit for a period of one year from the date such notice of denial was deposited in the mail or received by the applicant, whichever occurs first. However a reapplication prior to the termination of one year may be made if accompanied by evidence that the ground or grounds for denial of the applicant no longer exist.

(Ord. No. 94-130, § 1, 2-14-94)

No refund or rebate of a license or permit fee shall be allowed by the reason of the fact that the licensee or permittee discontinues an activity for which a license or permit is required pursuant to this division, or that the license or permit is suspended or revoked.

(Ord. No. 94-130, § 1, 2-14-94)

In the event that a license or permit is cancelled, suspended, revoked, or invalidated, the licensee or permittee shall forward it to the officer who issued it not later than the end of the third business day after notification of the cancellation, suspension, revocation, or invalidation.

(Ord. No. 94-130, § 1, 2-14-94)

All ordinances or parts of ordinances, or regulations in conflict with the provisions of this division are hereby repealed.

(Ord. No. 94-130, § 1, 2-14-94)