3.12. — Novato Municipal Code

Notice under subsection 8-3.12a. of the city's intent to draw upon the security fund shall be sufficient

notice of the city's intent to invoke remedies under this subsection 8-3.12d.

Revocation or Termination of License.

The city shall have the right to revoke the license for a licensee's failure to construct, operate, or maintain the cable system as required by this section or a license agreement; for defrauding or attempting to defraud the city or subscribers; if the licensee is declared bankrupt; or for any other material violation of this section or material breach of a license agreement. To invoke the provisions of this subsection, the city shall give the licensee written notice of the default in its performance. If within 30 calendar days following such written notice from the city to the licensee, the licensee has not taken corrective action or corrective action is not being actively and expeditiously pursued, the city may give written notice to the licensee of its intent to revoke the license, stating its reasons; provided that no opportunity to cure shall be provided where the licensee has defrauded or attempted to defraud the city or any of its subscribers, or in the event the licensee is declared bankrupt or any other event described in subsection 8-3.12e.4 occurs. In the case of a fraud or attempted fraud, the license may be revoked after the hearing required under subsection 8-3.12e.2; revocation for bankruptcy or other events described in subsection 8-3.12e.4 shall be governed by subsection 8-3.12e.4.

Prior to revoking a license, the city shall hold a public hearing pursuant to the procedures in subsection 8- 3.12f.

If the city revokes a license pursuant to the hearing process set forth in subsection 8-3.12f, the licensee may seek judicial review of the city's decision.

Any license may, at the option of the city council following a public hearing (but without applying the procedures set forth in subsection 8-3.12f), be revoked 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the licensee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding, unless within that 120 day period:

(a)

Such assignment, receivership, or trusteeship has been vacated; or

(b)

Such assignee, receiver, or trustee has fully complied with the terms and conditions of this section and a license agreement and has executed an agreement, approved by a court of competent jurisdiction, assuming and agreeing to be bound by the terms and conditions of this section and a license agreement acceptable to

the city, and such other conditions as may be established or as are required under subsection 8-3.13 of this section.

(c)

In the event of foreclosure or other judicial sale of any of the facilities, equipment, or property of a licensee, the city council may revoke the license, following a public hearing before the city council, by serving notice on the licensee and the successful bidder, in which event the license and all rights and privileges of the license will be revoked and will terminate 30 calendar days after serving such notice, unless:

(1)

The city council has approved the transfer of the license to the successful bidder; and

(2)

The successful bidder has covenanted and agreed with the city to assume and be bound by the terms and conditions of the license agreement and this section, and such other conditions as may be established or as are required pursuant to subsection 8-3.13 of this section.

If the city council revokes a license, or if for any other reason a licensee abandons, terminates, or fails to operate or maintain service to its subscribers, the following procedures and rights are effective:

(a)

The city may require the former licensee to remove its facilities and equipment at the former licensee's expense. If the former licensee fails to do so within a reasonable period of time, the city may have the removal done at the former licensee's and/or surety's expense.

(b)

In the event of revocation, the city, by resolution, may acquire ownership of the cable system in the manner provided in law.

(c)

If a cable system is intentionally abandoned by a licensee within the meaning of that term under State law, the city may treat those portions of the cable system in public rights-of-way as private property which has been abandoned in a public place.

The city may, by resolution, acquire ownership of and operate a cable system, whether or not such ownership is acquired before, during or following revocation or forfeiture of a license.

Notwithstanding any other provision of this section, where the city has issued a license requiring the completion of construction, system upgrade, or other specific obligation by a specified date, failure of the licensee to complete such construction or upgrade, or to comply with such other specific obligations as

required, may result in the revocation of the license by the city where it is so provided in the license agreement, unless the city, for good cause demonstrated by the licensee, grants an extension of time. The city shall grant an extension of time when any condition described in subsection 8-3.17f. of this section causes or contributes to the delay.

Hearings and Appeals.

The procedures in this section shall apply in the following circumstances:

(a)

If a licensee requests a hearing to contest the city's notice of its intent to draw on the security fund or letter of credit pursuant to subsection 8-3.12a.4(a) or invoke remedies under subsection 8-3. 12d.2;

(b)

If the city has given written notice of its intent to revoke a license pursuant to subsection 8-3.12e.1 and the licensee has failed to take corrective action or pursue such action actively and expeditiously; and

(c)

If the city has determined that a hearing should be held to resolve a subscriber complaint pursuant to subsection 8-3.16b.

The licensee shall be provided at least 15 days notice of the date, hour, and location of the hearing. The notice may be served personally or by mail. If the notice is served by mail, it shall be sent 20 days prior to the date of hearing. The notice shall also include a specific statement of the complaint brought against the licensee. At the hearing, the licensee and other interested parties shall be given fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, and to question witnesses. The city manager or his designee shall act as the hearing officer, provided that in the case of a subscriber complaint the hearing officer shall be an individual other than the person who determined that a hearing should be held. Provided, further, in the case of a hearing involving a revocation proceeding under subsection 8-3.12e.1 of this section, an independent, impartial hearings officer shall be jointly designated by the city and the licensee. In event the city and the licensee are unable to reach agreement on an independent, impartial hearings officer within seven days after the notice of the hearing has been given, then an independent, impartial hearings officers shall be appointed by any court of competent jurisdiction upon petition of the city or the licensee unless the city and the licensee agree to an extension of time within the initial seven days. The hearing officer shall, within 20 days of completion of the hearing, issue a written decision. In the case of a revocation proceeding initiated under subsection 8-3.12e.1, the hearing officer shall either grant the relief sought by the city or deny relief, and state the reasons for the decision. In the case of proceedings initiated under subsection 8-3.12a.4(a) or 8-3.16b, the hearing officer shall also state the reasons for the decision and may impose any lawful penalty or may assess liquidated damages pursuant to a license agreement, or find that no penalty or liquidated damages are warranted. The hearing officer shall serve notice of the decision on the licensee and the city. The notice of decision, if served by mail, shall be deemed served 15 days from the date of mailing.

The licensee (and in the case of a subscriber under subsection 8-3.12f.1(c), the subscriber) may, within ten calendar days from the date of service of the notice of decision, file an appeal.

Appeals are to be delivered to the city clerk. Appeals must stipulate the item being appealed, the date of the action being appealed, and the basis or facts upon which the appeal is based.

The city council shall hear all appeals. In considering an appeal, the city council shall review the written decision of the hearing officer and the licensee's (or subscriber's in a case under subsection 8-3.12f.1(c)) written appeal. The city council shall hear no arguments or new evidence in considering an appeal. The council may uphold, reduce or reverse any penalty imposed by the city hearing officer.

The licensee shall have the right to seek de novo judicial review of the city council decision.

Remedies Cumulative. All remedies available to or benefiting the city (including its officers and employees) under this section and the license agreement are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a licensee of its obligations to comply with its license. Remedies may be used singly or in combination; in addition, the city may exercise any rights it has at law or in equity.

Relation to Insurance and Indemnity Requirements. Recovery by the city of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise does not limit a licensee's duty to fully indemnify the city in any way; nor shall such recovery relieve a licensee of its obligations under a license, limit the amounts owed to the city, or in any respect prevent the city from exercising any other right or remedy it may have.

(Ord. No. 1343, § 12)

8-3.13 Transfers.

City Approval Required. No transfer shall occur without prior written application to and approval of the city council, and only then upon such terms and conditions as the city council reasonably finds necessary and proper. The licensee s obligations under this franchise involve personal services, performance of which involves personal credit, trust, and confidence in the licensee, and transfer without the prior written approval of the city shall be considered to impair the city's assurance of due performance. The granting of approval for a transfer in one instance shall not render unnecessary approval of any subsequent transfer.

Application.

The licensee shall promptly notify the city of any proposed transfer. If any transfer should take place without prior notice to the city, the licensee will promptly notify the city that such a transfer has occurred.

At least 120 calendar days prior to the contemplated effective date of a transfer, the licensee shall submit to the city an application for approval of the transfer. The city shall act as expeditiously as possible on the application. Such an application shall provide all necessary information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the transferee, and on the potential impact of the transfer on subscriber rates and service. At a minimum, the following information must be included in the application:

(a)

All information and forms required under Federal law;

(b)

All information required in subsections 8-3.4d, 1-5, 10, 11, 13, 15 and 16 of this section;

(c)

A detailed statement of the corporate or other business entity organization of the proposed transferee, together with an explanation of how decisions regarding the cable system will be made if the proposed transaction is approved;

(d)

Any business relationships involving the operation of the cable system or transactions of any kind, past, present, or anticipated, between the licensee or its affiliates and any potential transferees or affiliates thereof;

(e)

Any contracts, financing documents, or other documents that relate to the proposed transaction, and all documents, schedules, exhibits, or the like referred to therein; provided, this subsection shall not be deemed to require the disclosure of confidential information without adequate safeguards to protect its confidentiality.

(f)

Any shareholder reports or filings with the Securities and Exchange Commission ("SEC') or the Federal Trade Commission ("FTC") that discuss the transaction, and any filings required under the Clayton Act in connection with the proposed transaction;

(g)

Complete financial statements for the licensee and any potential transferees for the last three years, including balance sheets, income statements, profit and loss statements, and documents detailing capital investments and operating costs;

(h)

A detailed description of the financial resources that would be available to the system under the control of the proposed transferee;

(i)

Complete and accurate information regarding any potential impact of the transfer on subscriber rates and service;

(j)

A representation that the licensee is in compliance with its license, and if not in compliance, a description of noncompliance; and

(k)

A brief summary of the proposed transferee's plans for at least the next five years regarding line extension, plant and equipment upgrades, channel capacity, expansion or elimination of services, and any other changes affecting or enhancing the performance of the cable system.

For the purposes of determining whether it shall consent to a transfer, the city or its agents may inquire into all qualifications of the prospective transferee and such other matters as the city reasonably finds necessary to determine whether the transfer is in the public interest and should be approved, denied, or conditioned. The licensee and any prospective transferees shall assist the city in any such inquiry, and if they fail to do so, the request for transfer may be denied.

Determination by City.

In making a determination as to whether to grant, deny, or grant subject to conditions an application for a transfer of a license, the city shall consider the legal, financial, and technical qualifications of the transferee to operate the system; any potential impact of the transfer on subscriber rates or services; whether the incumbent cable operator is in compliance with its license agreement and this section and, if not, the proposed transferee's commitment to cure such noncompliance; whether the transferee owns or controls any other cable system in the city, and whether operation by the transferee may eliminate or reduce effective competition in the delivery of cable service in the city; and whether operation by the transferee or approval of the transfer would adversely affect subscribers, the city's interest under this section, the license agreement, other applicable law, or the public interest, or make it less likely that the future cable-related needs and interests of the community would be satisfied at a reasonable cost or in a reasonable time period. The city shall not withhold consent if the prospective transferee demonstrates that it can perform the obligations of the license at least as well as the licensee and without detriment to the rights and interests of the city and subscribers under the license.

Any transfer without the city's prior written approval shall be ineffective, and shall make this license subject to revocation, and to any other remedies available under the license agreement, this section, or other applicable law.

Any mortgage, pledge or lease shall be subject and subordinate to the rights of the city under this section or other applicable law.

Transferee's Agreement. No application for a transfer of a license shall be granted unless the transferee agrees in writing that it will a bide by and accept all terms of this section and the license agreement, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous licensee under this section and the license agreement for all purposes, including renewal, unless the city, in its sole discretion, expressly waives this requirement in whole or in part.

Approval Does Not Constitute Waiver. Approval by the city of a transfer of a license does not constitute a waiver or release of any of the rights of the city under this section or a license agreement, whether arising before or after the date of the transfer.

Processing Fee. As a condition of considering a transfer, the city may require that the transferor or the transferee pay the city's out-of-pocket expenses and a reasonable fee, as specified in subsection 8-3.4f., in considering the application for transfer of a license.

(Ord. No. 1343, § 13)

8-3.14 Rights of Individuals Protected.

Discriminatory Practices Prohibited.

A licensee shall not deny service, deny access, or otherwise discriminate against subscribers, programmers, or residents of the city on the basis of race, color, religion, national origin, sex, or age.

A licensee shall not discriminate among persons or take any retaliatory action against a person because of that person's exercise of any right it may have under Federal, State, or local law, nor may the licensee require a person to waive such rights as a condition of taking service.

A licensee shall not deny access or levy different rates and charges on any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.

Except to the extent permitted by applicable law, a licensee is prohibited from discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber, or group of subscribers or potential subscribers; provided, however, that a licensee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a nondiscriminatory basis to similar classes of subscribers throughout the city; and a licensee may offer discounts for the elderly, the handicapped, or the economically disadvantaged, and such other discounts as it is expressly entitled to provide under Federal law, if such discounts are applied in a uniform and consistent manner. A licensee shall comply at all times with all applicable Federal, State, and city laws, and all applicable executive and administrative orders relating to nondiscrimination.

Equal Employment Opportunity. A licensee shall not refuse to employ, discharge from employment, or discriminate against any person in compensation or in terms, conditions, or privileges of employment because of race, color, religion, national origin, sex, or age. A licensee shall comply with all Federal, State, and local laws and regulations governing equal employment opportunities, as the same may be from time to time amended.

Subscriber Privacy.

A licensee shall at all times protect the privacy of all subscribers pursuant to the provisions of applicable law. A licensee shall not condition subscriber service on the subscriber's grant of permission to disclose information which, pursuant to Federal or State law, cannot be disclosed without the subscriber's explicit consent.

Neither a licensee nor its agents or employees shall, without the prior and specific written authorization of the subscriber involved, sell the names, addresses, or telephone numbers of any subscriber or subscribers, or sell or make available any information that identifies the individual viewing habits, viewing preferences, beliefs, philosophy, creed, religion, or political opinions of any subscriber or subscribers. A licensee may make available to cable networks or satellite services the name and telephone number of subscribers who subscribe to those networks or services.

(Ord. No. 1343, § 14)

8-3.15 Criminal Violations and Penalties.

Violations.

It shall be unlawful for any person to establish, operate or to carry on the business of distributing to any persons in the incorporated areas of the city any television, radio or non-broadcast signals by means of a cable

system unless a license therefor has first been obtained from the city council and unless such license is in full force and effect.

It shall be unlawful for any person to construct, install or maintain within any public street in the incorporated areas of the city equipment or facilities for distributing any television, radio or non-broadcast signals through a cable system, unless a license authorizing such use of such street or property or area has first been obtained from the city council and unless such license is in full force and effect.

It shall be unlawful for any person, firm or corporation to make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of a licensed cable system within the incorporated areas of the city for the purpose of taking or receiving television signals, radio signals, pictures, programs, sound, or other non-broadcast signals.

It shall be unlawful for any person, firm or corporation to make any unauthorized connection whether physically, electrically, acoustically, inductively or otherwise, with any part of a licensed cable system within the incorporated areas of the city for the purpose of enabling himself or others to receive any television signal, radio signal, picture, programs, sound, or other signals without payment to the owner of said system.

It shall be unlawful for any person, without the consent of the owner, to willfully tamper with, remove or injure any cables, wire or equipment used in any cable system.

Connections to System; Use of Antennas. Notwithstanding the provisions of subsection 8-3.16a:

Subscribers shall have the right to attach devices to a licensee's system to allow them to transmit signals or services for which they have paid to VCR's, receivers, and other terminal equipment, provided that such transmissions comply with Federal law and FCC regulations. Subscribers also shall have the right to use their own remote control devices and converters, and other similar equipment, and a licensee shall provide information to consumers which will allow them to adjust such devices so that they may be used with the licensee's system.

A licensee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna, or disconnect an antenna except at the express direction of the subscriber or potential subscriber, or prohibit or discourage a subscriber from installing an antenna switch, provided that such equipment and installations are consistent with applicable codes.

Penalties.

Any person violating or failing to comply with any of the provisions of this subsection 8-3.15 or of subsection 8- 3.14c. of this section shall be guilty of a misdemeanor, and shall be punished by a fine of not less than fifty ($50.00) dollars nor more than two hundred fifty ($250.00) dollars or by imprisonment for a term of not to exceed 90 days, or by both such fine and imprisonment, except that a corporation shall be punished by a fine of not less than one hundred ($100.00) dollars nor more than five thousand ($5,000.00) dollars.

Each day that a person violates or fails to comply with the terms of this subsection 8-3.15 or subsection 8- 3.14c. shall constitute a separate offense under this section.

(Ord. No. 1343, § 15)

8-3.16 Subscriber Complaint Resolution.

Resolution by Licensee. Licensee shall resolve or make a good faith attempt to resolve all complaints within 30 days following receipt thereof from a subscriber or referral thereof by the city. Licensee shall maintain a record of each subscriber complaint for a period of three years following the receipt of such complaint. The record shall include the action taken by licensee to correct or resolve or attempt to correct or resolve the failure of service reported by the subscriber. If a complaint is received by the city, it shall be initially referred to the appropriate licensee for response.

Referral to City. In the event that a licensee has failed to resolve a complaint within 30 days, a subscriber may request that the city conduct a hearing on the complaint. Within 30 days of receipt of such a request, the city manager or his designee shall determine whether to hold a hearing to resolve the complaint. If the city manager or his designee determines that a hearing should be held, the procedures set forth in subsection 8-3.12f. shall apply.

(Ord. No. 1343, § 16)

8-3.17 Miscellaneous Provisions.

Compliance with Laws. Nothing in this section limits a licensees obligation to comply with all Federal and California laws, as well as city ordinances, resolutions, rules and regulations which do not discriminate against the licensee and are of general applicability heretofore and hereafter adopted or established in the valid exercise of the city's police powers during the entire term of any license.

Captions. The captions to sections throughout this section are intended solely to facilitate reading and reference to the sections and provisions of this section. Such captions shall not affect the meaning or

interpretation of this section.

No Recourse Against the City. Without limiting such immunities as the city or other persons may have under applicable law and except as otherwise provided by applicable law, a licensee shall have no recourse whatsoever against the city or its officials, boards, commissions, agents or employees for any loss, costs, expense or damage arising out of any provision or requirement of this section or because of the enforcement of this section or the city's exercise of its authority pursuant to this section, a license agreement, or other applicable law, unless the same shall be caused by criminal acts or by willful misconduct or gross negligence or by the city acting in excess of its police power authority.

Rights and Remedies.

The rights and remedies reserved to the parties by this section are cumulative and shall be in addition to and not in derogation of any other rights and remedies which the parties may have with respect to the subject matter of this section.

The city hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this section.

Specific mention of the materiality of any of the provisions herein is not intended to be exclusive of any others for the purpose of determining whether any failure of compliance hereunder is material and substantial.

No licensee shall be relieved of its obligation to comply with any of the provisions of this section by reason of any failure of the city to enforce prompt compliance. Nor shall any inaction by the city be deemed to waive a provision voiding any provision of this section.

Incorporation by Reference. Unless otherwise provided in a license agreement, any license granted pursuant to this section shall include a provision which shall incorporate by reference this section into such license as fully as if copied therein verbatim.

Force Majeure. A licensee shall not be deemed in default with provisions of its license where performance was rendered impossible by war or riots, civil disturbances, earthquake, fire, floods, or other natural catastrophes or other circumstances beyond the licensee's control, including, without limitation, the unavailability of necessary materials and delays caused by labor strikes, work stoppages, or other labor unrest and a license shall not be revoked or a licensee penalized for such noncompliance, provided that the licensee takes immediate and

diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with its license without unduly endangering the health, safety, and integrity of the licensee's employees or property, or the health, safety, and integrity of the public, public rights-of-way, public property, or private property.

Public Emergency. In the event of a major public emergency or disaster as determined by the city manager, or his or her designee, a licensee immediately shall make the entire cable system, employees, and property, as may be necessary, available for use by the city or other civil defense or governmental agency designated by the city to operate the system for the term of such emergency or disaster for the emergency purposes. In the event of such use, a licensee shall waive any claim that such use by the city constitutes a use of eminent domain, provided that the city shall return use of the entire system, employees, and property to the licensee after the emergency or disaster has ended or has been dealt with.

Calculation of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter, or payment is required under this section, and a period of time or duration for the fulfillment of doing thereof is prescribed and is fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period of duration time. If the last day of the period of time or duration falls upon a local, State, or Federal holiday, the period of time or duration shall be extended to include the next succeeding regular business day.

Severability. If any section, subsection, sentence, clause, phrase or portion of this section is for any reason held invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of the ordinance.

The city council hereby declares that it would have passed this and each section, subsection, phrase or clause thereof irrespective of the fact that any one or more sections, subsections, phrases, or clauses be declared unconstitutional on their face or as applied.

(Ord. No. 1345, § 17)

8-4 - Regulation of Massage Establishments and Massage Technicians.

8-4.1 Declaration of Purpose and Intent.

The purpose of this section is to establish comprehensive regulations for massage establishments and massage technicians to protect public health, safety, and welfare by providing minimum standards for the conduct of massage technicians.

This section is adopted under the authority of Government Code sections 51030 through 51034, Government Code section 37101, Business and Professions Code section 16000, and California Constitution Article XI,

Section 7, and shall establish permitting standards to comply with California law.

This section is not intended to be exclusive and compliance herewith shall not excuse noncompliance with any state or local laws or regulations that uniformly apply to other professional or personal services businesses, including, but not limited to, all zoning applications, business license provisions, building, fire, electrical, plumbing, and health and safety code laws and regulations applicable to professional or personal services businesses.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.2 Definitions.

As used in this section:

California Massage Therapy Council or CAMTC means the California Massage Therapy Council established pursuant to Business and Professions Code section 4602(a).

Days means calendar days unless otherwise expressly stated.

Employee means any person working for the operator of a massage establishment.

Massage or massage therapy means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the exterior of the body with the hands or with the aid of any mechanical apparatus or appliance, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, creams, lotion, ointment, or other similar preparations commonly used in this practice.

Massage establishment means any establishment having a fixed place of business, where any person engages in, conducts, carries on, or permits to be engaged in, conducted, or carried on, for any form of consideration whatsoever, massage as defined herein. Any establishment engaging in any combination of massage, bath facilities, including, but not limited to, showers, baths, hot tubs, saunas, or other dry or wet heat rooms, and/or personal services as defined in section 19.60.020, shall be deemed a massage establishment.

Massage technician means any person who, for any form of compensation, administers to another person a massage as herein defined. The terms massage therapist and massage practitioner are included within this definition for purposes of this section.

Operator means a person with an ownership interest in a massage establishment.

Out-call massage means a massage given at a location other than at a massage establishment.

Patron means a person who pays any form of compensation to obtain a massage as defined herein.

Permit means written authorization from the chief of police or his designee to operate a massage establishment or to administer massages as a massage technician.

Permittee means a person who has been issued a permit by the chief of police or his or her designee under the provisions of this section.

Person means an individual, firm, association, partnership, corporation, joint venture, or combination of individuals.

Sexual or genital part means the genitals, pubic area, anus, perineum of any person and the breasts of any female.

Sole proprietorship means a massage establishment where the owner owns 100 percent of the business and is the only person who provides massage services for that business pursuant to a valid state massage certificate.

State massage certificate means a valid certificate issued by the CAMTC to either a massage therapist or massage practitioner, as those terms are defined in California Business and Professions Code Section 4601.

State massage law means Chapter 10.5 of the California Business and Professions Code (Section 4600 et seq.) as the same may be amended from time to time.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.3 Permits and Licenses Required.

Massage Establishment Permit. Unless exempt pursuant to subsection 8-4.4, it shall be unlawful for any person to engage in, conduct, or carry on the business or operation of a massage establishment within the city

without first obtaining a permit to operate a massage establishment pursuant to subsection 8-4.5 of this code.

Use Permit. Massage establishments in the city may operate only in zones where such use is permitted pursuant to chapter 19 of this code, and only with a valid use permit.

Business License. Any person who engages in, conducts, or carries on the business or operation of a massage establishment providing massages to the public for any form of consideration shall apply for and obtain a business license pursuant to section 8-1 of this code.

CAMTC certification. It shall be unlawful for any person to administer massage for any consideration whatsoever within the city without a valid state massage certificate.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.4 Exceptions.

The requirements of this section shall not apply to the following individuals while engaged in performing the duties of their respective professions:

Currently licensed physicians, surgeons, chiropractors, osteopaths, physical therapists, or nurses and any persons acting under the direction and control of any of the aforementioned licensed professionals on the premises of the medical establishment.

Barbers and cosmetologists who are currently licensed to practice their profession under the laws of the State of California provided that such massage is limited to the head, neck, scalp, feet and legs below the knees.

Trainers of any amateur or professional athlete or athletic team when such practice of massage is limited to such athlete or team.

School athletic trainers and coaches while acting with the scope of their employment.

The requirements of this section shall not apply to the following classes of establishments:

A medical establishment including professional offices where massage is administered by any of the licensed professionals listed in paragraph a.1. above, or by an individual acting under the direction and control of any of the aforementioned licensed professionals on the premises of the medical establishment.

Hospitals, medical clinics, nursing homes, mental health facilities, sanitariums, and other health care facilities duly licensed by the State of California.

Barbershops or beauty salons where massage is limited to the head, neck, scalp, feet and legs below the knees and is administered by barbers or cosmetologists who are currently licensed under the laws of the State of California.

Schools providing a course of study approved by the California Department of Education or Superintendent of Public Instruction in which massage is administered or taught to students by authorized school employees in conjunction with sports and athletic programs, training in the healing arts or other school courses.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.5 Massage Establishment Permit Application.

Unless exempt pursuant to subsection 8-4.4, any person desiring to obtain a permit to operate a massage establishment shall submit a completed application to the chief of police on a form provided by the chief. The application shall be accompanied by a nonrefundable filing fee established by resolution of the city council to defray the cost of processing the application including the background investigation, inspection of the proposed massage establishment premises and fingerprinting. The application shall contain the following information:

The proposed business name and location of the massage establishment;

The type of ownership of the business (corporation, partnership, individual, or otherwise):

(A)

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 ten percent of the stock of the corporation. The application shall include the information required by this section for each of said individuals.

(B)

If the applicant is a partnership, the application shall set forth the names and residence addresses of each of the partners, including limited partners. The application shall include the information required by this section for each of said persons. If one or more of the partners is a corporation, the provisions of paragraph (A) pertaining to corporate applicants shall apply.

(C)

If the applicant is an individual, the name and residence address of the individual.

The exact nature of the proposed massage establishment and the type of massage treatments to be administered;

The name and address of the owner of real property upon, in, or from which a massage establishment is to be operated. In the event the applicant is not the record owner of said property, as shown on the latest county assessment roll, the application shall be accompanied by a copy of any written lease between the applicant and the property owner authorizing use of the premises as a massage establishment or if there is no written lease, then a written, notarized acknowledgement from the property owner that the property owner has been advised that a massage establishment will be operated by the applicant on the property owner's property;

A photograph of the applicant at least two inches by two inches taken within one year preceding the application;

The complete history of the applicant as to all practice and employment in the massage establishment field including all permits and licenses obtained and any revocation or suspension thereof;

The name of each person that the massage establishment employs or retains, or intends to employ or retain, as a massage technician and a copy of that person's massage technician permit or state massage certificate and CAMTC-issued identification card;

If the applicant holds a valid state massage certificate, a copy of his or her state massage certificate and CAMTC-issued identification card.

Unless the individual applicant has claimed an exemption pursuant to state massage law, the Novato Police Department shall require the submission of fingerprint images from the applicant and investigate their criminal history. A permit for a massage establishment will not be issued if the applicant has been convicted of any of the following offenses or has been convicted of an offense outside the State of California that would have constituted any of the following offenses if committed within the State of California:

(A)

An offense involving conduct which requires registration pursuant to Section 290 of the Penal Code;

(B)

An offense involving the use of force and violence upon the person of another that amounts to a felony;

(C)

An offense involving sexual misconduct with children;

(D)

An offense charged under Chapter 7.5 of Title 9 of the Penal Code;

(E)

An offense charged under Section 266i, 647 (a), 647 (b), 315, 316 or 318 of the Penal Code.

Issuance of a permit by the chief of police to operate a massage establishment does not authorize the permittee to physically administer massage to patrons.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.6 Issuance or Denial of a Permit to Operate a Massage Establishment.

The chief of police shall determine whether to issue or deny an application for a permit to operate a massage establishment within 30 days of receiving a completed application. A permit shall be issued unless the chief of police determines any of the following to be true:

The applicant has been convicted of any of the offenses set forth in subparagraph 8-4.5(a)(9) above; or

The applicant has not yet attained 18 years of age; or

Information provided by the applicant is found to be false in any material detail; or

The applicant has had a permit suspended by the chief of police and the period of suspension has not yet ended or has had a permit revoked within five years immediately preceding the application; or

The proposed massage establishment would not comply with one or more requirements of this section or of this code.

Term. A permit to operate a massage establishment issued pursuant to the terms of this section shall be valid for a term of one year from the date of issuance, unless sooner suspended, revoked, or abandoned as set forth in this section. A permit that has not expired and has not been suspended or revoked may be renewed on an annual basis upon submittal of a written application and payment of a renewal application fee to be established by resolution of the city council.

Renewal. Applications for the renewal of a permit to operate a massage establishment shall be filed with the chief of police at least 60 days before the expiration of the permit to be renewed. Temporary permits will not be issued. Any permittee allowing his or her permit to lapse may not renew said permit but shall be required to submit a new application and payment of the original application fee.

Non-assignability. A permit to operate a massage establishment may not be sold, transferred or assigned by the permittee, or transferred by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall constitute a voluntary surrender of such permit and such permit shall thereafter be null and void except as hereinafter set forth.

If the permit is issued to a corporation and stock is sold, transferred, issued or assigned to a person who is not named on the permit application as a stockholder, the permit shall be deemed null and void; provided, however, the proposed transferee may submit to the chief of police, together with a fee established by the city council, an application to amend the original application providing all information as required for stockholders in the first instance. Upon approval thereof, the transfer may then occur.

If the permittee is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of such permit. In such case the permit, upon notification to the chief of police, shall be placed in the name of the surviving partners. A new partner shall submit an application to amend the original application by providing all information as required of partners in the first instance.

Change in Application Information. If any changes occur which result in changes to the information provided on an application required pursuant to this subsection, the applicant or permittee shall submit an updated application within 15 days from the date such changes occur.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.7 Appeal of Permit Denial. A decision to deny a permit to operate a massage establishment may be appealed to the city manager by filing a written appeal with the city manager within ten days from the date of the notice of denial issued by the chief of police. If no appeal is filed, the action of the chief of police in denying such permit shall be final. Upon the filing of a timely appeal, the city manager shall hold a hearing and may affirm or overrule the decision of the chief of police.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.8 Posting of Permits, Certificates, and Other Information Required.

All massage establishments shall post the following documents and information in an open and conspicuous location of the massage establishment:

A valid business license;

A valid permit to operate the massage establishment;

A copy of a valid CAMTC certificate or massage technician permit for each and every massage technician administering massage treatments on the premises, including a photograph of the massage technician measuring two inches by two inches or larger in size affixed to each respective certificate or permit that is on display;

A valid use permit; and

A schedule of services that indicates each massage treatment offered, the price of each massage treatment offered, and the minimum length of time such massage treatment shall be administered.

Massage technicians who perform out-call massage services shall carry a copy of their CAMTC or massage technician permit, along with a copy of their city business license, to the location where such massage services are performed and shall present them to patrons or city representatives upon request.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.9 Inspections. The chief of police, county health department, building official, fire marshal, or any other person or persons charged with enforcing or administering the provisions of this section or any other applicable state law, rule, or regulation shall have the right to enter the massage establishment at any time during business hours for the purpose of enforcing said provisions, laws, rules or regulations. A warrant shall be obtained whenever required by law.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.10 Arrangement for Services. All massage establishments and massage technicians shall comply with the following standards in the negotiation and performance of services:

Arrangements for massage treatments to be administered shall be made within the room containing the posted schedule of services. Services shall be described in readily understandable language.

No sums shall be charged other than those listed on the posted schedule of services.

Employees and massage technicians shall not advise, suggest or otherwise indicate to a patron the availability of any treatment or service that is not listed on the posted schedule of services.

Massage technicians shall not perform any treatments or services that a patron did not request.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.11 Facilities and Operating Requirements for Massage Establishments.

Massage establishments shall comply with the following facilities and operating standards:

The massage establishment's premises and facilities shall meet and be maintained in a condition to comply with all applicable code requirements of the city, county, and state, including, but not limited to, those related to the safety of structures, adequacy of the plumbing, lighting, heating, ventilation, waterproofing of rooms in which showers, water or steam baths are used, and the health and cleanliness of the facility.

Massage shall be provided or performed only between the hours of 7:00 a.m. and 10:00 p.m. No massage establishment shall be open and no massage shall be provided between 10:00 p.m. and 7:00 a.m. A massage commenced prior to 10:00 p.m. shall nevertheless terminate at 10:00 p.m. and all patrons shall exit the premises of the massage establishment at that time. It is the obligation of the massage establishment to inform patrons of the requirement that massages must cease at 10:00 p.m.

All walls, ceilings, floors, pools, showers, bathtubs, wet and dry heat rooms, steam rooms, tables and all other physical facilities shall be in good repair and maintained in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms, showers and toilet rooms shall be thoroughly cleaned at least once each day the massage establishment is in operation. Bathtubs shall be thoroughly cleaned after each use.

A recognizable and legible sign shall be posted at the main entrance identifying the establishment as a massage establishment. This requirement shall not apply to any athletic club, health club, country club, gymnasium, beauty salon, or similar establishment, where massage is offered as an incidental, accessory or secondary service to its primary program of sports, exercise, athletic training, or beauty care. Incidental, accessory or secondary service shall mean that no more than 15 percent of its total floor area is used for the provision of facilities/services to patrons for the provision of massage services.

Adequate equipment for disinfecting and sterilizing instruments used in administering massage shall be provided. Instruments utilized in performing massage shall not be used on more than one patron unless they have been sterilized by disinfecting agents and/or sterilizing equipment sufficient to assure the cleanliness and sterility of the instruments.

Hot and cold running water shall be provided at all times to all wash basins, bathtubs, showers and similar equipment present on the premises.

Closed cabinets shall be provided for storage of clean linens. Nonabsorbent containers or laundry bags shall be provided for damp or soiled linen, and linen shall be kept therein until removed for laundering.

A minimum of one toilet facility shall be provided on the premises of the massage establishment. When five or more employees and patrons of different sexes are on the premises at the same time, separate toilet facilities shall be provided. A single water closet per sex shall be provided for each 15 or more employees or patrons of that sex on the premises at any one time. Urinals may be substituted for water closets after one water closet has been provided. All toilet rooms shall be equipped with self-closing doors opening in the direction of ingress to the toilet rooms.

Lavatories or wash basins shall be installed in each toilet facility. Each wash basin shall be provided with soap or detergent, and sanitary towels placed in permanently installed dispensers.

Clean and sanitary towels and sheets shall be provided for each patron receiving a massage. No common use of towels or sheets shall be permitted.

The use or possession of adult-oriented merchandise in or on any part of the massage establishment is prohibited.

No alcoholic beverages shall be sold, served, furnished, kept or possessed on the premises of a massage establishment.

A massage establishment shall not be used for residential or sleeping purposes unless the massage establishment is properly zoned and has all necessary use permits, and the massage establishment is owned by one individual with one or no employees or independent contractors.

No massage services shall be performed within any room on the premises of a massage establishment that is fitted with a lock. Except as provided herein, all external doors of a massage establishment shall remain unlocked during business hours. In the event that the massage establishment has more than one external door, secondary access doors may be locked provided that the main entrance remains unlocked. External doors may be locked if the massage establishment is a business entity owned by one individual with one or no employees or independent contractors.

For each massage service provided, every massage establishment shall keep a complete and legible written record of the following information: the date and hour that service was provided; the service received; the name or initials of the employee entering the information; and the name of the massage technician administering the service. Such records shall be open to inspection and copying by the chief of police or other city or county officials charged with enforcement of this section. These records may not be used by any massage technician or operator for any purpose other than as records of service provided and may not be provided to other parties by the massage technician or operator unless otherwise required by law. Such records shall be retained on the premises of the massage establishment for a period of two years and be immediately available for inspection during business hours.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.12 Prohibited Conduct.

No permittee or employee of a massage establishment shall:

Expose the sexual or genital part of him or herself in the course of a massage therapy; or

Touch or expose the sexual or genital part of any other person in the course of a massage therapy; or

Perform massage therapy on a patron with the intent or purpose of arousing, appealing to, or gratifying the sexual desires of said patron; or

Perform any task or service associated with the massage establishment while nude, semi-nude, or dressed in lingerie, see-through or transparent attire; or

Use any electrical, mechanical or artificial device for photographic, audio and/or video recording within the rooms of the massage establishment where massage is being performed, where persons dress or undress and in restroom facilities; or

Place, publish or distribute or cause to be placed, published or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers that any service is available that is prohibited by this section or other applicable law nor shall any massage establishment employ language in any advertising text or business name that would reasonably suggest to a prospective customer that any service is available that is prohibited under this section or other applicable law; or

Allow a person under the age of 18 years to enter and remain in a massage establishment without express written permission from the minor's parent or guardian. This requirement shall not apply to any athletic club, health club, country club, gymnasium, beauty salon, or similar establishment, where massage is offered as an incidental, accessory or secondary service to its primary program of sports, exercise, athletic training, or beauty care. Incidental, accessory or secondary service shall mean that no more than 15 percent of its total floor area is used for the provision of facilities/services to patrons for the provision of massage services; or

Allow any person other than the patron and the patron's immediate family or legal guardian in the massage room while the patron is dressing or undressing; or

Allow persons other than the patron and massage technician(s), and the patron's immediate family or legal guardian, in a massage room with its doors closed. Notwithstanding this subsection, two or more patrons who wish to receive massage services together may do so in the same room with the doors closed provided each patron is assigned an individual massage technician and there are no other persons other than a patron's immediate family or legal guardian in the room.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.13 Suspensions and Revocations.

The chief of police or applicable permitting authority may suspend or revoke a massage establishment or massage technician permit, business license, or any other approval required under this section, after a hearing, where it is found that:

The permittee or licensee practiced fraud or deceit in obtaining the approval;

Violations of any of the following occurred on the premises of the massage establishment or were committed by a massage technician: California Business and Professions Code sections 4600 et seq.; any local, state, or federal law; or the provisions of this section;

The permittee or licensee has been convicted in a court of competent jurisdiction of any offense that would be cause for denial of such permit or license in the first instance; or

The approval was issued in error.

During the time that a permit is suspended, it shall be unlawful for the permittee to exercise any of the rights granted by this section.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.14 Notice of Suspension or Revocation; Hearing.

Upon the determination of the chief of police that there are grounds to suspend or revoke a massage establishment or massage technician permit, the chief shall cause a notice of suspension or revocation to be mailed by first class mail to the address designated by the massage establishment or massage technician permittee on their permit application.

At the time and date specified in the notice, the permittee may appear and show cause before the chief of police as to why such permit should not be suspended or revoked. Upon the failure of the permittee to appear at said time or, if after appearance and hearing, the chief of police finds good and sufficient cause for suspension or revocation, the massage establishment or massage technician permit shall be suspended or revoked, as determined by the chief.

Upon any suspension or revocation of a massage establishment or massage technician's permit, no refund of any permit fee shall be made and the fee shall be forfeited to the city.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.15 Appeal of Suspension or Revocation.

Any decision to suspend or revoke a permit may be appealed to the city manager by filing a written appeal with the city manager within ten days of the date that the notice of decision was issued by the chief of police. If the ten days expires on a date that city hall is not open for business, then the appeal period shall be extended to the next city business day. The appeal shall clearly and concisely set forth the grounds upon which it is based.

appealed to the city manager by filing a written appeal with the city manager within ten days of the date that the notice of decision was issued by the chief of police. If the ten days expires on a date that city hall is not open for business, then the appeal period shall be extended to the next city business day. The appeal shall clearly and concisely set forth the grounds upon which it is based.

Failure to file a timely appeal petition with the city manager shall constitute a waiver of the right to appeal.

The decision of the city manager is final. The city manager may promulgate written rules and regulations for the conduct of hearings by the chief of police and regarding appeals to the city manager.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.16 Reapplication after Revocation.

The holder of a massage establishment permit that has been revoked may not reapply for a new permit for a period of one year from the date of the revocation.

If a massage establishment permit is revoked, no application for a new massage establishment permit at the same location will be accepted within one year after the effective date of the revocation.

(Ord. No. 1606, § 2(Exh. A), 10-11-2016)

8-4.17 Violation—Penalty.

Every person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction, such person shall be punishable as set forth in section 1-5.

Every person who violates any provision of this section may be subject to administrative citations pursuant to