San Leandro Municipal Code Art. 3 Permit and Certifications

(Legislative History: Ordinance No. 2016-008, 7/5/16)

It is unlawful for any person to practice massage within the City unless that person is a certified massage technician. Massage establishment owners shall ensure that all employed massage technicians are certified massage technicians. Non-certified massage technicians shall be permitted to practice massage pursuant to a valid masseur or masseuse permit issued by the City of San Leandro until December 1, 2016. Such noncertified massage technicians may be employed by massage establishments.

The Permit Administrator shall revoke a City-issued masseur or masseuse permit if he or she finds:

(a) That any information contained in or submitted with the application for the permit is not true; or

(b) That the applicant has been convicted of any of the following offenses or convicted of an offense without the State of California that would have constituted any of the following offenses if committed within the State of California:

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

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

(3) An offense involving sexual misconduct with children;

(4) An offense as defined in Section 315, 316, 318 or 647(b) of the Penal Code of the State of California.

(c) Notice of revocation of the permit shall be given in writing to the masseur or masseuse by the Permit Administrator. The masseur or masseuse shall cease all operations under the permit within 48 hours of delivery of said notice, unless a notice of appeal is filed consistent with the procedures provided in Section 4-23-315(d) of this Chapter.

No massage establishment may operate in the City unless and until all owners of the massage establishment have applied for and obtained an operator permit from the Permit Administrator pursuant to this section. Massage establishment owners who have an existing massage establishment permit or who were previously exempt from obtaining a massage establishment permit shall be issued an operator permit without having to submit an application and will be required to renew the operator permit on the date that the existing massage establishment permit would have expired or pursuant to this Chapter.

(a) Application for Operator Permit: All owners of the massage establishment, or their duly authorized agent, shall file an application for an operator permit for the massage establishment on a form provided by the Permit Administrator. For purposes of this section, the "applicant" for the operator permit shall refer to and include each and every owner of the massage establishment. The application shall include the following information:

(1) Name, address, and telephone number of the massage establishment;

(2) The name, residence address and telephone number, and business address and telephone number of the massage establishment owner(s) applying for the operator permit;

(3) The form of business under which the applicant will be conducting the massage establishment, i.e., corporation, general or limited partnership, limited liability company, or other form. 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 shareholder holding more than 10% of the stock of the corporation. If the applicant is a general or limited partnership, the application shall set forth the name and residence address 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. If the applicant is a limited liability company, the application shall set forth the name and residence address of each of the members. If one or more of the members is a partnership, limited liability company, or corporation, the provisions of this section pertaining to a partnership, limited liability company, or corporate applicant shall apply, as applicable;

(4) The name and address of the owner of the real property upon, in, or from which the massage establishment is to be operated. In the event the applicant is not the legal owner of the property, the application shall be accompanied by a copy of any written lease between the applicant and the property owner authorizing use of the premises for a massage establishment, or, alternatively, if there is no written lease, then a written, notarized acknowledgment from the property owner that the property owner has been advised that a massage establishment will be operated by the applicant upon, in, or from the property owner's property;

(5) A description of the proposed massage establishment, including the type of treatments to be administered;

(6) For each person that the massage establishment employs or retains to perform massage, a copy of that person's current certification from the CAMTC as a certified massage technician, and a copy of that person's CAMTC identification card. The City shall maintain a list of massage technicians retained to perform massage at the massage establishment;

(7) Whether any license or permit has ever been issued to the applicant by any jurisdiction under the provisions of any ordinance or statute governing massage, and as to any such license or permit, the name and address of the issuing authority, the effective dates of such license or permit, whether such license or permit was ever suspended, revoked, withdrawn, or denied; and copies of any documentary materials relating to such suspension, revocation, withdrawal, or denial;

(8) Whether the applicant has within the five years immediately preceding the date of application been convicted in any state of any felony;

(9) Whether the applicant is currently required to register under the provisions of Section 290 of the California Penal Code;

(10) The applicant's business, occupation, and employment history for five years preceding the date of application, and the inclusive dates of same;

(11) One set of fingerprints for each applicant in a form satisfactory to the Permit Administrator. The fingerprints shall be taken at a place designated by the Permit Administrator, and any required fee for such fingerprinting shall be paid by the applicant;

(12) Such other information as may be required by the Permit Administrator to determine compliance with any other eligibility requirements for issuance of the operator permit as specified by Federal, State, or local law. The Permit Administrator may waive any of the requirements of this section for an owner who is also a certified massage technician.

(b) Application and Compliance Fee: Any application for an operator permit under this Chapter shall be accompanied by a nonrefundable application fee. The fee to issue or to renew an operator permit shall be established from time to time by resolution of the City Council and shall be included within the City's Master Fee Schedule. The fee shall be calculated so as to recover the cost of administration and enforcement of this Chapter, including, for example, issuing an operator permit, administering this Chapter, establishment inspection and compliance checks, documentation of violations, and prosecution of violators, but shall not exceed the cost of the regulatory program authorized by this Chapter. All fees and interest upon proceeds of fees shall be used exclusively to fund the program. Fees are nonrefundable except as may be required by law.

(c) Issuance or Denial: The Permit Administrator shall grant an operator permit for the massage establishment if the massage establishment owners have satisfied the requirements of this section and all other applicable laws including, but not limited to, the City's building, zoning, and health regulations, unless the Permit Administrator determines any or more of the following to be true:

(1) The applicant, or any shareholder, partner, or member of the applicant, within five years immediately preceding the date of filing of the application, has been convicted in a court of competent jurisdiction of any offense that relates directly to the operation of a massage establishment whether as a massage establishment operator or as a person practicing massage, or as an employee of either; or has at any time been convicted in a court of competent jurisdiction of any felony the commission of which occurred on the premises of a massage establishment; or

(2) The applicant is currently required to register under the provisions of Section 290 of the California Penal Code; or

(3) The applicant, or any shareholder, partner, or member of the applicant, has been convicted in a court of competent jurisdiction of any violation of Section 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22 of the California Penal Code, or conspiracy or attempt to commit any such offense, or any other crime involving dishonesty, fraud, deceit, violence, or moral turpitude, or any offense in a jurisdiction outside of the State of California that is the equivalent of any of the aforesaid offenses; or

(4) The applicant, or any shareholder, partner, or member of the applicant, has been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Sections 11225 through 11235 of the California Penal Code, or any similar provision of law in a jurisdiction outside the State of California; or

(5) The applicant, or any shareholder, partner, or member of the applicant, has knowingly made a false statement or omission of a material fact in the application for the operator permit; or

(6) The applicant, if an individual, has not attained the age of 18 years; or

(7) The applicant, or any shareholder, partner, or member of the applicant, within five years of the date of application, and as established by clear and convincing evidence, has engaged in acts prohibited under California Penal Code Section 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22; or

(8) The applicant, or any shareholder, partner, or member of the applicant, within five years immediately preceding the date of filing of the application, has had a permit or license to practice massage or to own and/or operate a massage establishment revoked or denied in any jurisdiction.

(d) Notice to Property Owner: Where the applicant is not the record owner, as shown on the latest County assessment roll, of the property upon, in, or from which the massage establishment is to be operated, then upon issuance of an operator permit, the Permit Administrator may send a written notice to the property owner advising of the issuance of the permit and of the regulations applicable to the massage establishment and the property pursuant to this Chapter. Any other notices sent to the applicant pursuant to this Chapter at any time before or after issuance of the operator permit may also be sent to the property owner.

(e) Notice of Denial—Appeal: If an operator permit is denied, the Permit Administrator shall serve on the applicant, in the manner provided in Section 4-23-315 of this Chapter, a written notice of denial that shall specify the grounds for the denial and shall indicate the appeal procedures.

(f) Display of Permit: Each holder of an operator permit shall display that permit in an open and conspicuous place on the premises visible from the entrance and/or reception and waiting area of the massage establishment or stored in a binder behind the counter and immediately available upon request from an inspector.

(g) Term: An operator permit issued pursuant to the terms of this Chapter shall be valid for a term of three years from the date of issuance. A permit that has not expired and has not been suspended or revoked may be renewed for another three year period, on submittal of a written application and payment of a renewal application fee to be established by resolution of the City Council.

(h) Requirement to Amend Operator Permit Application: In addition to the requirements of Sections 4-23-410 and 4-23-415, whenever the information provided in the application for operator permit on file with the City changes, the operator shall, within 10 business days after such change, file an amendment to the operator permit application with the Permit Administrator. The applicant shall file an amendment to the information required by subsection (a)(6) with the Permit Administrator prior to permitting any certified massage technician employed or retained to perform massage to begin providing services on the premises of the massage establishment.

(i) Violations and Remedies:

(1) Operator Responsible for Employees: For the purpose of enforcing the requirements of this Chapter, the operator shall be responsible for the conduct of all massage employees, agents, independent contractors, or other representatives while such persons are on the premises of the massage establishment.

(2) Revocation: An operator permit may be suspended or revoked by the Permit Administrator as provided in Section 4-23-315. Upon revocation, the massage establishment shall immediately cease operation, and, if so ordered by the Permit Administrator, no other massage establishment shall be permitted to operate at that location by any person for a period of not less than three years. If the operator is not also the legal owner of the real property on which the massage establishment is situated, notice of such revocation and the three year prohibition shall be provided by the Permit Administrator to the owner of record of the property as shown on the latest County assessment roll.

(3) Cumulative Remedies: The remedies provided by this Chapter are cumulative and in addition to any other remedies available at law or in equity.

Any operator permit issued pursuant to this Chapter may be suspended or revoked by the Permit Administrator after a hearing, where it is found by clear and convincing evidence that any of the following have occurred:

(a) Finding of Violation: The person(s) to whom the operator permit has been issued, or any person employed or retained by the massage establishment, has been found to have violated any provision of this Chapter; or

(b) Prohibited Conduct: The permittee or any person employed or retained by the massage establishment has been convicted in a court of competent jurisdiction of having violated, or has engaged in conduct constituting a violation of, any of the following: California Penal Code Section 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22, or conspiracy or attempt to commit any such offense, or any offense in a jurisdiction outside of the State of California that is the equivalent of any of the aforesaid offenses; or

(c) Registration under Penal Code Section 290: The permittee or any person employed or retained by the massage establishment is required to register under Section 290 of the California Penal Code; or

(d) Nuisance Injunction: The permittee has been subject to a permanent injunction against the conducting or maintaining of a nuisance pursuant to this Code, or Sections 11225 through 11235 of the California Penal Code, or any similar provision of law in any jurisdiction outside the State of California; or

(e) Fraud or Misrepresentation: The permittee or any employee has engaged in fraud or misrepresentation or has knowingly made a misstatement of material fact while working in or for the massage establishment; or

(f) Operation during Suspension: The permittee has continued to operate the massage establishment after the operator permit has been suspended; or

(g) Massage without Certification: Massage has been performed on the premises with or without the permittee's actual knowledge, by any person who is not a CAMTC, or equivalent, authorized, certified massage technician; or

(h) Prohibited Acts: There have been one or more acts prohibited under California Penal Code Section 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22 taking place on the premises, whether or not any criminal prosecution has been pursued or conviction obtained for such acts, and whether or not they occurred with or without the actual knowledge of the permittee; or

(i) Sexual Touching: The permittee or any person employed or retained by the massage establishment or any other person on the premises of the massage establishment has engaged in conduct or committed acts that a reasonable person in a patron's position would understand as an offer to perform on or engage in with the patron acts that are sexual in nature or that involve touching of the patron's genitals, pubic area, anus, and areola.

(j) Negligent Supervision: The permittee failed to provide adequate supervision of the massage establishment, resulting in a pattern of at least three violations of this Code or State or Federal law.

(a) Written Notice Required: The Permit Administrator, before revoking or suspending any operator permit, shall give the permittee at least 10 calendar days' written notice of the alleged grounds for revocation or suspension and shall conduct a hearing in the matter of whether the permit shall be revoked or suspended. The hearing shall be conducted at least 10 calendar days from the date of written notice which shall be provided in the following manner:

(1) Service of Notice and Order: All notices shall be posted on the property and also served upon the record owner and any tenant. A copy of the notice shall also be served on each of the following if known to the Permit Administrator or disclosed from official public records: the holder of any mortgage or deed of trust or other lien or encumbrance; the owner or holder of any lease; and the holder of any other estate or legal interest of record in or to the building or the land on which it is located. The failure of the Permit Administrator to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served to relieve any such person from any duty or obligation imposed by the provisions of this section.

(2) Method of Service: Service shall be made upon all persons entitled thereto either personally or by mailing a copy by certified First Class U.S. mail to each such person at their address as it appears on the last equalized assessment roll of the county or as known to the Permit Administrator. If no address of any such person appears or is known to the Permit Administrator, then a copy shall be mailed to the address of the parcel of land involved in the proceedings. The failure of any such person to receive such notice shall not affect the validity of any proceedings taken under this section. Service shall be effective on the date of the mailing.

(3) Proof of Service: At the time of service, each person affecting service shall complete a written declaration under penalty of perjury, which declares the time, date and manner in which service was made. The declaration shall be affixed to the copy of the notice and order retained by the Permit Administrator.

(b) Hearing: The Permit Administrator shall consider all evidence at the hearing. The hearing may, after being commenced within the time specified pursuant to subsection (a) of this section, be continued for good cause by the Permit Administrator from time to time. The Permit Administrator shall, at the conclusion of the hearing, make findings of fact based upon the evidence submitted and shall decide whether or not the permit shall be revoked or suspended.

(c) Notice of Decision: The Permit Administrator's written notice of decision shall be served on the permittee, within 30 business days of the conclusion of the hearing, in the manner provided in subsection (a) of this section, and, in the case of a revocation or suspension, such notice of decision shall indicate the appeal procedures as set forth hereinafter.

(d) Appeal: Any applicant or permittee shall have the right to appeal from a decision by the Permit Administrator to deny a permit or renewal application, or to approve such an application with conditions, or to suspend or revoke an operator permit, by filing with the City Clerk a written notice of appeal specifying the grounds for such appeal, within 10 calendar days after the decision has been served on the applicant or permittee. The appeal must also include the appeal fee established by resolution of the City Council and included within the Master Fee Schedule. Such appeal shall be heard by an administrative hearing officer appointed by the City Manager or designee, upon not less than 10 business days written notice to the appellant. The designated administrative hearing officer shall consider all relevant evidence at the hearing, may continue the hearing for good cause, and shall require such legal briefing as may be required to address any issues raised by the appeal. Within a reasonable time, but not more than 20 business days following the conclusion of the hearing, the administrative hearing officer shall issue a written decision affirming, denying, or modifying the decision from which the appeal was taken, supported by factual findings and determinations referenced by supporting evidence. The written decision shall be served on the appellant as provided in Code of Civil Procedure Section 1094.6(b), with a copy submitted to the City Clerk and the City Attorney. The written decision of the administrative hearing officer shall be final and shall be subject to judicial review according to the provisions and time limits set forth in Code of Civil Procedure Section 1094.6.

(a) Grounds for Immediate Suspension of Permit: The Chief of Police may immediately suspend an operator permit on an interim basis if he or she determines that an immediate suspension is necessary to protect the health, safety or welfare of the public and:

(1) Determines that the permitee is operating or managing the massage establishment or providing services in the massage establishment in a manner which poses an immediate danger to the health or safety of employees, clients, or the public; or

(2) The permitee or any massage technician has been arrested for any offense involving lewdness, indecent exposure, prostitution, sexual battery, human trafficking, or any sex-related crime in connection with the massage establishment.

(b) Notice of Suspension: If the Chief of Police immediately suspends a permit, the Chief of Police shall provide written notice to the permittee by personal notice or certified mail. The notice shall contain a statement that the permit is immediately suspended and such suspension shall remain in effect during the period of time that an appeal may be filed or an appeal is under consideration. The notice shall provide information on the appeal process and explain that the suspension may lead to permanent revocation of the permit.

(c) Appeal: Within 15 calendar days of service of the immediate suspension (the date of mailing or personal service), the permittee may file an appeal of the suspension and request a hearing in accordance with Section 4-23-315(b) of this Chapter.

(d) Effect of No Appeal—Final Decision: If after the passage of 15 calendar days from service of the suspension notice, the permittee has not filed an appeal, the decision of the Chief of Police to suspend the permit shall become final and the operator permit shall be revoked by the Permit Administrator.