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HomeMy WebLinkAboutOrd 1894ORDINANCE NO, 1 894 ORDINANCE OF THE CITY OF BURLINGAME AMENDING TITLE 6 OF THE Bi_IRLINGAME MUNICIPAL CODE TO REFLECT CHANGES IN STATE LAW GOVERNING MASSAGE PRACTITIONERS, IMPLEMENT VERIFICATION PROCESS FOR STATE -ISSUED MASSAGE CERTIFICATIONS, AND UPDATE APPLICABLE HEALTH AND SAFETY REGULATIONS. WHEREAS the California Legislature enacted Senate Bi11731 which substantially revised portions of the California Business and Professions Code governing massage practifioners and establishments; and WHEREAS the revised California Business and Professions Code now expressly preempts conflicting local laws governing massage practitioners; and WHEREAS current Title 6 of the Burlingame Municipal. Code regulates massage practitioners in a mumer inconsistent with Senate Bill 731; and WHEREAS the City currently has no process for authenticating or registering state -issued cerkificafions for massage practitioners; and WHEREAS current heath and safety regulations applicable to massage establishments and practitioners should be updated to reflect best practices of analegeus-comparable city an d county regulations; and WHEREAS current Chapter 6.4 of the Burlingame Municipal Code regulates Massage, Spa and Bathing Establishments within the City and, aft er adoption of the massage provisions herein, there remains a continuing need to regulate Spa and Bathing Establishments; NOW, THEREFORE, the City Council does hereby ordain as follows: DNISION 1: Burlingame Municipal Code Title 6 is hereby amended as follows: Section 1, Current Chapter 6.40, Massage, Spa, and Bathing Establishments is hereby renamed "Spa and Bathing Establishments," and amended as follows: 6.40.010 Purpose. It is the purpose and intent of the city council that the operation of massage, spa, bathing and other similar establishments and persons offering services therein, wherein the principal function is the provision of massages -and -baths and spa services, as defined in this chapter, should be regulated in the interests of public health, safety and welfare by providing minimum building sanitation and health standards for such establishments, and to ensure that persons offering services therein shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered. It is further intended that these provisions provide a framework that is consistent with regulations imposed by nearby communities on similar businesses. (Ord. 988 § t (part), (1973); Ord. 1426 § 2 (part), (1990); Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005)) 6.40.020 Permit required. (a) It is unlawful for any person to operate, engage in, conduct, carry on, or permit to be operated, engaged in, conducted or carried on (as the owner of the business premises or in any other capacity) in or upon any premises within the city, the business of a massage spa, bathing or other similar establishment, , having -massages baths or spa services as their principal function, all as defined herein, unless the person has first obtained an operator's permit for such a business from the city and the permit remains in effect in accordance with the provisions of this chapter. (b) It is unlawful for any person to act as a inassage-spa or bathingpractitioner as defined in this chapter unless that person has first obtained a massage -practitioner's permit from the city and the permit remains in effect in accordance with the provisions of this chapter. (Ord. 988 § 1 (part), (1973); Ord. 1426 § 2 (part), (1990); Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (zoos)) 6.40.030 Definitions. F,or the purpose of this chapter, the following words and phrases shall have the meanings respectively ascribed to thein by this section: (a) "Health officer" means the health officer of the Ceounty of San Mateo or the health officer's authorized representative. chapter.(b) Instrument' 'means any tool or ins ment, but does not include physical agent nodalities, including light/laser therapy, ultrasound, phonophoresis, microcurrent, TENS, euromuscular electrical stimulation (NWS), iontophoresis, interferential current, or HiVolt. feat or cold packs are not considered instruments under this etherAing, rubbing, pf essifig, stf ekiiig, kneading, tapping, petinding, 3vibuffthig ey stimulating with he hands, - heman bedy,- r a" instrument-. (d) 'Massage, spa, bathing or athef similff establishment" of "massage establis1hffiefw' blishffiefft having a fixed -- ea4mems, invehring ftiassage, hot tubs, satmas, ef baths as the piineipal function, are given, 0. (e) "Massage praefitionei'means any pefseff who admiftistefs a massage, bath or heft eftsidefcAieii whatsoever. • .n who owns or operates a massage, spa, battring or partnership,(g) "Out call massage sefviee" means a" busiftess, in whieh the primary fiffietieli Of Stieh —(h— "Person" means any individual, firm, association,corporation, enture, or combination of individuals. eheeh- (e) "Practitioner" means any person who administers a bath or health treatment nvolving baths or spa services as a mincipal function to another oerson whatsoever (t) "Spa services" means any bearity and health treatment not subject to independent regulation or certification under state or local law. (9) "Spa, bathing or other similar establishment" means any establishment having_ a fixed place of business where baths or health treatments, involving hot tubs, saunas, or baths as the principal function, are given, engaged in or carried on, or permitted to be given, engaged in or carried on in any manner described in Section 6.40.030(f). "Spa, bathing, or other similar establishments" does not include massage services, or those services subject to independent r gulation or certification under state or local law. _(Ord. 988 § 1 (part), (1973); Ord. 1426 § 2 (part), (1990); Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005); Ord. 1821 § 2, (2008)) 6.40.035 Corporations and partnerships. 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 the officers, directors and each stockholder holding more than ten (10) percent of the stock of the corporation. Each officer of the corporation or each partner in a partnership must submit an application and comply with Section 6.40.040. If one or more of the partners is a corporation, the provisions above pertaining to a corporate applicant apply. (Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), 2005)) 6.40.040 Application for permit. Any person, except as herein otherwise provided, desiring a permit to operate a massage; spa, bathing or similar establishment er " , having massage-er• baths or spa services as their principal function, or to engage in the praeticc of giving massages er Laths shall first make application therefor for permit under this chapter by filing with the license collector a sWC rn application in writing on a form to be famished by the license collector which shall give the following information; an operator -massage practitioner may make a single application and pay a single fee: (a) Name, residence, and telephone number; (b) The previous address of the applicant for the ten (1.0) years immediately prior to the present address of the applicant; (c) Social Security number and driver's license number, if any; (d) Birth certificate or other written proof acceptable to the police department that the applicant is at least eighteen (18) years of age; (e) Fingerprints (taken by the police department for criminal history investigation) and three (3) portrait photographs at least two (2) inches by two (2) inches, taken within the last sixty (60) days immediately prior to the date of the filing of the application, showing the bead and shoulders of the applicant in a clear and distinct manner; (f) Applicant's height, weight, color of eyes and hair; (g) Business, occupation or employment of the applicant for the ten (10) years immediately preceding the date of application; (h) The business license and permit history of the applicant for massage of businesses, whether individually or as a member or part of a corporation, partnership, or other business, wherever located. The history shall include a statement as to whether any previous permit or license in which the applicant was involved was revoked or suspended or any reavocation or suspension is pending, and the reasons for the previous or proposed revocation or suspension; (i) If the application is for a -massage practitioner permit, the name and address of the establishment where the applicant is to be employed and the name of the operator of the same; 0) Whether the applicant has ever been convicted of any crime, except misdemeanor traffic violations. For each such conviction, a statement shall be made giving the place and court in which the conviction occurred, the specific charge under which the conviction was obtained and the sentence imposed as a result of the conviction; (k) Whether any previous employer or person while employed by or with the applicant has been convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under California Penal Code subsection 290, or a violation of subsections 266(i), 311 through 311.7, 314, 315, 316, 318, 318.5, 318.6, or 647(a), (b), (d), (h), (i), or (k) of the Penal Code; Will =vim I I mmam WE I Kinval &WJ�41 NEWEVE El NINE NEW LEE M I INEMAWNI ON III all WORKWA�W WANT ME MEN �MAME all MINE 0 ethe.l.. pfa f ..sign e work ef„f.,.....age of baths of health «,-.dice with rela+ie . thereto of the. 56118..,:..._ Milli........t he..«... (1) Twe hundred (200) hours; (2) As of October 1, -20% 4�vva hufldred dcm v (3) As of Oeteher t 2007,4ffeektitidEed fifty (350) hours; (4) As of October 1 2008 f,.,.« ht ffidred t.. e«t. five (425) hours; an (5) As ,.f O t,.he,. 1 'lnnn five h, ndfe.1 (500) h,..,«...provided, heweye.. that an applieanL p"ee �a �1) Proof of applicable certifications, if any, including but not limited to diplomas and transcripts from schools providing coursework in the fields of the spa and bathing therapy (in) Such other identification and information necessary to discover the truth of matters hereinbefore specified as required to be set forth in the application; (en) A certificate executed under penalty of perjury from a medical doctor stating that the applicant has, within thirty (30) days immediately prior to the filing of the application, been examined and found to be free from any infectious, contagious or communicable disease capable of being transmitted through th_._ape:.A4e massagebathing and spa therapy; (po) A separately signed waiver and release authorizing the city and its authorized agents, and employees to obtain information and to conduct an investigation into the truth of the statements made on the application and the qualifications and record of the applicant; (,.) A certificate f.,.m a ,....,a:,.,.1 __,.et:t;,,..er ....pek4ed 1.. the , . that eenfirms the appliewWs knowledge of physielegy, anateffJJF, and teehnique relating to the field of fnassage pre..ide.1 that an applicant for an ,. permwho .will h,..,e «e ,.,h. sieal eatitaet with (r) 1f the appheation is fe« .,« .. pefrapfe..f of current effers ,,,1 a Rialpfaetiee insurance in the amount of not less than five htradi-7ed dietisand dellars ($500,000.00), pro.,ides afftiamatie malpfaet;ee insu«,.«ee as e «.ewibe«..h:.. he«eft; Current certification in cardiopulmonary resuscitation and first aid from the American Heart Association or the American Red Cross. (tq) If the application is for an operator's permit, the name and address of the owner and lessor of the real property upon or in or from which the business is to be conducted. If the applicant is not the owner of the real property, the owner of the real property must sign and acknowledge the application. (ur) If the application is for an operator's permit, a safety plan including, but not limited to, exterior lighting, parking lot security, and emergency access to the establishment. (Ord. 988 § 1 (part), (1973); Ord. 1426 § 2 (part), (1990); Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005): Ord. 1755 § 2, (2005)) 6.40.050 Exemptions. The permits required by this chapter for operators shall not apply to hospitals, nursing homes, sanitariums, or other healthcare facilities duly licensed by the state of California. (Ord. 988 § 1 (part), (1973); Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005)) 6.40.055 Exemptions from tnassaE3e-practitioner permit requirements. The massage practitioner permit required by this chapter shall not apply to the following: (a) Physicians, surgeons, chiropractors, osteopaths, acupuncturists, and physical therapists, and occupational therapists duly licensed to practice in the state of California, but only when engaged in the practice for which they are so licensed and in accordance with the terms of the licensing. (b) Nurses duly registered by the state of California, but only when engaged in the practice for which they are so registered and in accordance with the terms of the registration. (c) Employees of hospitals, nursing homes, sanitariums, or other health care facilities duly licensed by the state of California, but only when engaged in the scope of their employment, and only at their place of employment at the health care facility; and only within the scope of and in conforman ce with the state license. (d) Cosmetologists or barbers who are licensed by the state of California, but only when engaged in the practice for which they are so registered and in accordance with the terms of the registration. (e) Accredited elementary school, high school, or college coaches and trainers employed by a elementary, high school, or college, but only while acting within the scope of employment to the school. (f) Trainers of semi-professional or professional athletic teams, but only while acting within the scope of employment to the team. (Ord. 1750 § 2 (part), (2005); Ord. 1821 § 3, (2008)) (g) Massage practitioners as defined and regulated under Chapter 6.50 of this Code. 6.40.057 Permit not entitlement to violate other laws. The issuance of a permit under this chapter shall not entitle the permittee to engage in any business or practice which for any reason is in violation of any law or ordinance and shall not entitle the holder thereof to carry on any business or practice unless he or she has complied with alI the requirements under the other ordinances of the city and all other applicable laws, nor shall it entitle the permittee to carry on any business in any building or on any premises designated in such permit in the event that such business or premises are situated in a zone or locality in which the conduct of such business is a violation of any law. In particular, a permit issued under this chapter does not entitle any person to use physical agent modalities that require separate licensing by the state of California, including light/laser therapy, ultrasound, phonophoresis, microcurrent, TENS, neuromuscular electrical stimulation (NMES) iontophoresis, interferential current, or HiVolt. (Ord. 1821 § 4, (200 8)) 6.40.060 Permit fee and investigation. (a) All applications for initial permits shall be accompanied by a filing and investigation fee as established by resolution adopted by the city council from time to time, no part of which is refundable. Additional fees may be charged to cover costs of processing the applicant's fingerprints by the state of California and for the medical examiner's competency examination. (b) Upon receipt of a complete operator's application, the license collector shall refer the application to the director of community development, building official, the fire department and the police department, each of which within a period of thirty (30) days from the date of filing the application shall inspect the premises proposed to be used as a massagespa or bathing establishment, interview the applicant or any other person and make any other investigation necessary to make a written recommendation to the police department; provided that the thirty (30) days may be extended for such period as may be necessary to obtain fingerprint records from the appropriate state agency. (c) Applications for -massage practitioner permits shall be referred only to the police and community development departments. The community development department shall provide its findings to the police department within thirty (30) days of the filing of a complete application. (Ord. 988 § 1 (part), (1973); Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005); Ord. 1806 § 5, (2007); Ord. 1823 § 8, (2008)) 6.40.070 Business license. At the time of an initial application for an operator's permit, applicant shall also apply for and furnish the information necessary to obtain a business license as required by Chapter 6.04 of this code. No business license shall be issued until the investigation under this chapter is completed and the permit to operate is approved. The business license shall then be issued upon payment of the business license fee as provided in Chapter 6.04 of this code. (Ord. 988 § 1 (part), (1973); Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005)) 6.40.080 Issuance or denial of permit. (a) Upon receipt of the investigation reports from each of the departments to whom the application has been referred, the police department shall issue the requested permit if all required information_, :fte1..a:ng dipl,.ma e_ ,..+ar.,.,.t.,. has been furnished and the reports filed find that: (1) The ehafaeter of the applicant is satisfac4etzy; (1-2) If the application is for an operator's permit, the establishment as proposed would comply with all and not violate any applicable laws, including, but not limited to, the city's building, fire, health and zoning regulations; (23) The applicant has not been convicted in a court of competent jurisdiction of an offense involving: (A) Conduct that requires registration under Penal Code Section 290, or (B) Violations of Penal Code Sections 266(1), 311, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, 311.7, 311.10, 311.11, 314, 315, 316, 318, 318.5, 318.65 459, 518, or 647(a), (b), (d) or (h), or comparable provisions of the laws of any other state, the United States, or any other country, or (C) Any other offense involving sexual misconduct with a child; (4) The applicant has not been convicted of the use of force or violence upon another, provided that misdemean or convictions shall be a basis for denial for a paled ep riod of five (5) years fr om the date of conviction; (5) The applicant has not knowingly and with hrteit to deceive made any false, misleading or fraudulent oral or written statements in the permit application or to any person investigating the application; (6) The applicant does not have an infectious, contagious or communicable disease that could be transmitted through the provision of bathing or spa services, and is not in violation of airy federal, state or local health law or regulation; 7.f7��r�ee!esf !�rs�x�e��es r Qom` T'",c-city has not denied a previous application by the applicant for an operator's or massage practitioner permit within the twelve (12) months immediately preceding the date of the application; (b) The permit shall be denied if all of the above findings cannot be made or if all of the information required is not supplied to the city. If denied, the reasons therefor shall be endorsed upon the application, and the police department shall notify the applicant of the disapproval with a copy of the application upon which the reasons have been endorsed by first class mail. (Ord. 988 § 1 (part), (1973); Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005); Ord. 1833 § 2, (2008)) 6.40.090 Appeal. If a permit is denied, applicant has ten (10) days from the date of mailing the notice within which to appeal to the city council by filing a written application for a public hearing with the clerk of the city. Notice and a public hearing shall be given as follows: (a) Upon receipt of the appeal, the city clerk shall set the matter for hearing before the council, at a regular meeting thereof, within thirty (30) days from the date of filing the appeal, and shall give written notice of the hearing to the applicant at the applicant's address set forth in the appeal by first class mail at least ten (10) days prior to the hearing date. (b) On the date set, the council shall hear the matter, and may continue it from time to time before reaching a decision. If the council finds that the applicant has satisfactorily met all of the requirements of this chapter, it shall order the issuance of the permit and business license. If it finds that the requirements have not been met satisfactorily, it shall deny the permit. (c) All findings of the council shall be final and conclusive upon the applicant. (Ord. 988 § 1 (part), (1973); Ord. 1431 § 1 (part); (1991); Ord. 1484 § 2 (part); (1993); Ord. 1750 § 2 (part ), (2005)) Alifflassage, spa, 5. operatingomply with the following (1) Advertising. No massage establishffiefA ef atit eall faassage service granted a perm -- - - 11M_.. 1 . 10 (b) n..t G ll ?vlassage Service. niiy pe_se grafte,l ^ am r this ^1,^..t^....,a^ wtief, manager or person in ehafge ef �he hetel ef motel that the peittflittee i4efids to provide «ed at the hotel o fftetel 5�v copy and g e f the � (e) List of Sefviees. A massage establishffiei4 shall pest a list of services in feadib ,. ff .. anvr masrage wrxwes n the remises other than these posted on the list --(d--La) Sanitation and Conduct. All establishments shall comply with the following minimum sanitation requirements: (1) Employees and Nfassage-Practitioners. All employees in a,.,assa^^ establishmernssa and/or massage pfaet4ietiefsbathing establishments shall perform their work fully clothed, be clean and wear clean outer garments whose use is restricted to the establishment. Doors to dressing rooms, bathing rooms, and treatment rooms shall open inward, and shall not be locked. Draw drapes, curtain enclosures, or accordion -pleated closures are acceptable on all inner dressing and treatment rooms in lieu of doors. Separate dressing rooms and toilet facilities complying with the city building codes shall be provided for each sex. (2) Linens. All establishments shall be provided with clean, laundered sheets and tewelslinens in sufficient quantity and shall be laundered after each use thereof and stored in closed, sanitary cabinets. Heavy white paper may be substituted for sheets provided that such paper is used only once for each person and then discarded into a sanitary receptacle. Sanitary approved receptacles shall be provided for the storage of all sued linens. (3) Facilities. At least one entrance door allowing access to the establishment and any building it may be in; shall remain unlocked during business hours; notwithstan ding this provision, the facility shall also comply with e iting and entrance requirements of other applicable laws and regulations. All premises and facilities shall be maintained in a clean and sanitary condition, and shall be thoroughly cleaned each day of operation. The premises and facilities shall meet all code requirements of the city as to safety of the structure, adequacy of plumbing, heating, ventilation and waterproofing of rooms where showers, water or steam baths axe given. (4) Patron Facilities. Patrons of the establishments shall be famished with securable locker facilities, for which the patron has the control of the key or lock and security deposit facilities for the protection of their valuables. 11 (5) Hours. MassageSpa and bathing establishment operations shall be carried on or conducted, and the premises shall be open, only between the hours of 7:00 a.m. and 9:00 p.m. The hours stated here are the maximum permitted hours; actual hours may be further limited by applicable zoningor r use permit restrictions. (6) Disabled Access. Each-Bnasaage establishment shall be disabled accessible with restrooms available with disabled access. (7) Changing Rooms. Each-maesage establishment shall provide separate restroom and changing rooms for male and female patrons. (8) Lighting. Minimum lighting shall be at least one si� (60) watt ligk in eaeh eftelesure Fill be3�Nrithin the enelesttfe. Thefe shall be ne light iti the e"elesure that is operated fFern e4side he erielosufe. There shall be no sound deviee (i.e., buzzer of bell) thaii ean be opefated from utside the massage eiielestife. (9) Reeefds. Eaeh fliassage estaWishiiiefft shall keep a wFitten record of the date and hetif a fffefeemeii� ef this ehapter and fer ne ether pth�pese. Stieh feeefds will be kept an the premises (1 0) No Residential Use No part of the 8 No Residential Use. No art of the establishment shall be used for residential or sleeping purposes. No cooking or food preparation will be allowed on the premises unless a full service kitchen is installed. Such kitchen will be for the sole use of employees, and will be installed in an employees -only area. The full service kitchen will have a minimum of a sink with hot and cold running water, a refrigerator, a stove, and sufficient cabinets to store cooking utensils (Ord. 988 § 1 (part), (1973); Ord. 1426 § 2 (part), (1990); Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); rd. 1750 �§ (pm�20" 12 6.40.110 Inspection byo cas. The investigating officials of the city, including the health officer, shall have the right to enter the premises from time to time during regular business hours for the purpose of making reasonable inspections to observe and enforce compliance with the provisions of this chapter and building, fire, electrical, plumbing or health regulations. (Ord. 988 § 1 (part), (1973); Ord. 1431 § 1 (part), (1991); Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005)) 6.40.115 Surety bond. (a) Each applicant for an operator's permit shall post with the city clerk, a surety in the principal sum amount of ten thousand dollars ($10,000.00) either in cash or executed as surety by good and sufficient corporate surety authorized to do a surety business in the state of California and as principal by the applicant. The form of the bond shall have been approved by the city attorney and shall provide that should the applicant be issued a permit under this chapter which is subsequently suspended or revoked, the city shall be reimbursed from such bond for all costs of any investigation or other proceedings related to the suspension or revocation. (b) If a holder of an operator's permit under this chapter successfully completes twenty-four (24), consecutive months in actual operation under the permit without any suspension of the permit or the filing of any criminal or civil complaint regarding operations under the permit by either a city attorney, a district attorney, the California Attorney General, or a United States Attorney, the permitholder may request the city to release the surety bond, which the city shall do upon. verification that no such suspension or complaint filing has occurred during the. period. However, if at an y time following such a release of the surety bond, the city determines that the permitholder is conducting its operations in violation of this chapter, the chief of police may order the posting of a surety bond in accordance with subsection (a) above as a condition of continued operations under the permit. (Ord. 1484 § 2 (part), (1993); Ord. 1689 § 2, (2002); Ord. 1750 § 2 (pmt), (2005)) 6.40.120 Sale or transfer of establishment. (a) Upon sale, transfer or relocation of a massagesspa, bathing or similar establishment, the permit shall not be transferable without the written approval of the chief of police and the finance director. An application for such a change shall be accompanied by a nonrefundable filing and I� investigation fee as established by resolution adopted by the city council from time to time and provide all of the information required in Section 6.40.040. (Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005); Ord. 1823 § 9,(2008); Ord. 1823 § 9, (2008)) 6.40.130 Revocation or suspension of permits. (a) Any massage, spa, bathing or similar establishment permit, or et4 albt, or -massage practitioner permit issued under this chapter shall be subject to suspension or revocation by the city manager for violation of, or for causing or permitting violation of, any prorevision of this chapter or for any grounds that would warrant the denial of such permits in the first instance. (b) 'Prior to the suspension or revocation of any permit issued under this chapter, the permittee shall be entitled to a hearing before the city manager or the manager's designated representative, at which time evidence will be received for the purpose of determining whether or not the permit shall be suspended or revoked or whether the permit may be retained. In the event the permit is suspended or revoked, the notification of the reasons for such suspension or revocation shall be set forth in writing and sent to the permittee by means of first class mail. The manager may impose conditions or restrictions on the permit in lieu of suspension or revocation to attempt to eliminate violations or nuisances that have been found. (c) In the event of suspension or revocation of an y permit, the permittee may appeal to the city council in the manner as provided in Section 6.40.090. (Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (zoos)) 6.40.140 Display of signs and permits. No person granted an operator's permit pursuant to this chapter shall begin operations until a recognizable and legible sign has been posted at the main entrance to the permit premises. All permits granted shall befff the pietafe of the pefmWee aiid shall be posted within the establishment in a location immediately available for inspection for representatives of the city, neluding the permits for out eat! massage aftd massage practitioners. Out eall massage peftnittees tit eal massage s6fviees., No person granted a permit pursuant to this chapter shall operate under any other name or at any other location than that specified in the permit. (Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005)) 14 6.40.150 Notice of changes. All persons granted permits pursuant to this chapter shall report immediately to the city finance department and the police department all changes of residence or business address or change of ownership of the establishment or service. Failure to give such notice within fifteen (15) days of the event shall render the permit null and void. (Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005)) 6.40.160 Renewal of permits. Each permit shall be renewed annually, no less than ninety (90) days prior to the anniversary date of its issuance. Any permit not renewed shall be null and void on such anniversary date. The investigation fee for renewals shall be as established by resolution adopted by the city council from time to time, no part of which is refundable. Additional fees may be charged to cover costs such as processing fingerprints. Prior to permit renewal being granted the permittee shall: (1) Provide two (2) photographs of passport size at least two (2) inches by two (2) inches showing the head and shoulders of the applicant in a clear and distinct manner taken with the sixty (60) days immediately prior to filing the renewal application and current information concerning any changes to the facts set forth in the initial or immediately prior renewal application; (2) Provide anew certificate, dated within thirty (30) days of the renewal, from a medical doctor stating that the licensee is free from infectious, contagious or communicable diseases capable of being transmitted through thefap _ __i _. __ssagesua and bathingtherapies and provide a current certification in cardiopulmonary resuscitation and first aid from the American Heart Association or the American Red Cross; (3) Obtain clearance from the police department that the permittee has had. no arrests or convictions for violations listed in subsection 6.40.080(a)(3) or (4) of this chapter since the permit was issued or last renewed; (4) Provide a eepjr .r,, dipl,.,.,,. of ,..idea. ,.r,..., a ation r_,.... ,. _.,.,.,...:zed , heal requirementsuffent ,.rsubsection c nn 040( ) e fthi a ebaptiff-.conies of applicable certifications consistent with industry customs. However, this requirement does not apply if the original permit was approved before March 22, 2005. Upon complete submission of this information together with the required filing fee, the permit shall be renewed. (Ord. 1484 § 2 (part), (1993); Ord. 1750 § 2 (part), (2005); Ord. 1755 § 3, (2005); Ord. 1823 § 10, (2008); Ord. 1833 § 3, (2008)) 15 Section 2. A new Chapter 6.5, Massage Establishments, is hereby enacted as follows: 6. 50.010 Purpose. It is the purpose and intent of the city council that the operation of massage services and persons offering services therein, wherein the principal function is giving of massages, as defined in this chapter, should be regulated in the interests of public health, safety and welfare by providing minimum sanitation and health standards for such establishments, and to ensure that persons offering services therein shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered. It is the city's intent to rely upon the uniform statewide regulations set forth in California Business and Professions Code Section 4600 et seq. It is further intended that these provisions provide a framework that is consistent with regulations imposed by nearby communities on similar businesses. 6.50.020 Definitions. For the purpose of this chapter, flee following words and phrases shall have the meanings respectively ascribed to them by this section: (a) "Applicant" means any person or entity applying for registration from the city, including each of the following persons: the responsible managing officer/employee, a general partner, a limited partner, a shareholder, a sole proprietor, or any person who has a five percent or greater ownership interest in a massage business whether as an individual, corporate entity, limited partner, shareholder or sole proprietor. (b) "California Massage Therapy Council" means the message therapy organization formed pursuantto Californ ia Business and Professions Code Section 4600 et seq.; as amended, and referr ed to as CAMTC herein. (c) "Certificate of registration" means a certificate issued by the police department upon submission of satisfactory evidence that an individual or business has a current and valid state certification and has satisfied all other requirements pursuant to the provisions of this chapter. (d) "Certified" means any person holding a current and valid state certificate issued by the CAMTC pursuant to California Business and Professions Code Section 4600 et seq., as amended. (e) "Certified massage business" means any business where the only persons employed or used by that business to provide massage services have current and valid state certifications. 16 (f) "Certified massage practitioner" means any person holding a current and valid state certificate issued by the CAMTC pursuant to California Business and Professions Code Section 4600 et seq., as amended. (g) "Health officer" means the health officer of the county of San Mateo or the health officer's authorized representative. (h) "Massage" means any method of treating the external parts of the human body for any form of consideration. This includes, but is not limited to, bathing, rubbing, pressing, stroking, kneading, tapping, pounding, vibrating or stimulating with the hands, other parts of the human body, or any instrument, with or without the aid of any instruments or supplementary aids, such as oils and creams. (i) "Massage establishment" means any business where massages, baths or health treatments, involving massage, hot tubs, saunas, or baths as the principal function, are given, engaged in or carried on, or permitted to be given, engaged in or carried on in any manner described in this section. (j) "Massage practitioner" means any person who administers a massage within a massage establishment for any form of consideration. (k) "Person" means any individual, partnership, firm, association, corporation, john venture, or combination of individuals. (1) "Registered" means any individual or business having a current and valid certificate of registration from the city, unless otherwise noted. 6.50.030 State certification and city registration required. (a) It is unlawful for any person to operate; engage in; conduct, carry oii; br permifto be operated, engaged in, conducted or carried on (as the owner of the business premises or in any other capacity) in or upon any premises within the city, the business of a massage establishment all as defined herein, unless the person has first been certified for such a business, and the certification remains in effect in accordance with the provisions of this chapter. (b) It is unlawful for any person to act as a massage practitioner unless that person has first registered with the city and the registration remains in effect in accordance with the provisions of this chapter. 17 6.50.040 Grant of Authority. The police chief or designated representative shall have the power and authority to promulgate rules, regulations, and requirements consistent with provisions of this chapter and other law in connection with the issuance of a certificate of registration. The police chief may designate an employee of his or her department to make decisions and investigations and take actions under this chapter. 6.50.050 Application for registration. Airy person, except as herein otherwise provided, desiring to operate a massage business, or to engage in the practice of giving massages, shall first file a registration application to the police department on forms provided by the city. This application shall contain all of the following: (a) State Certificaton Verification (1) The applicant and all massage practitioners currently employed or to be employed in the massage business shall produce in person all of the following: i. a valid and current state certification ii. a valid and current CAMTC issued identification card iii. a current and valid driver's license or identifi cation card issued by a state, federal governmental agency, or photographic identification bearing a bona fide seal by a foreign government V. with respect to the approved massage schools attended by the applicant and all certified massage practitioners, certified copies of transcripts, a true and correct copy of the diploma(s) issued, and current contact information of all school(s) the certified mas sage practitioners att ended V, If the applicant is the owner of the business and a certified massage practitioner, the applicant shall produce a sworn statement that the certified massage business shall employ only certified massage practitioners (2) An applicant who is not certified and owns five percent or more of the business shall produce in person all of the following: vi. name, residence, and telephone number vii. acceptable proof that the employee is at least eighteen years of age viii. Social Security number and driver's license, if any 18 ix. the previous address of the applicant for the ten (10) years immediately prior to the present address of the applicant X, business, occupation or employment of the applicant for the ten (10) years immediately preceding the date of application; xi. fingerprints (taken by the police department for criminal history investigation) and three (3) portrait photographs at least two (2) inches by two (2) inches, taken within the last sixty (60) days immediately prior to the date of the filing of the application, showing the head and shoulders of the applicant in a clear and distinct manner xii. whether the applicant has ever been convicted of any crime, except misdemeanor traffic violations. For each such conviction, a statement shall be made giving the place and court in which the conviction occurred, the specific charge under which the conviction was obtained and the sentence imposed as a result of the conviction xiii, whether any previous person while employed by the applicant has been convicted in a court of competent jurisdiction of an offense involving conduct which requires registration under California Penal Code subsection 290, or a violation of subsections 266(1), 311 through 311.7, 314, 315, 316, 318, 318.5, 318.6, or 647(a), (b), (d), (h), (i), or (k) of the Penal Code (b) General Business Information (1) the full true name wider which the business will be conducted (2) the present or proposed address where the business is to be conducted (3) a complete description of all services to be provided (4) the name and address of any massage business or other like business owned or operated by any person whose name is required to be given pursuant to this section (5) a description of any other business to be operated on the same or adjoining premises, owned or controlled by the applicant (6) the contact information of the owner and lessor of the real property, if any, upon or in which the business is to be conducted (7) a true and complete copy of any lease associated with the premises (8) if the applicant is a corporation, the applicant shall provide certified copies of the Articles of Incorporation and Bylaws, along with the name and residence addresses of each of its current officers and directors, stockholders holding more than five percent of the stock of that corporation, and its registered agent for receipt of process 19 (9) if the applicant is a partnership, the applicant shall provide the names and residence address of each of the partners, including limited partners. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership as filed with the county clerk..If one or more partners is a corporation, the provisions of this subsection pertaining to corporate applicants shall apply to the corporate partner (c) Such other identification and information necessary to discover the truth of matters hereinbefore specified as required to be set forth in the application (d) A separately signed waiver and release authorizing the city and its authorized agents, and employees to obtain information and to conduct an investigation into the truth of the statements made on the application (e) A signed statement that the owner/applicant shall be responsible for the conduct of all employees or independent contractors working on the premises of the business and that failure to comply with California Business and Professions Code Section 4600 et seq., with any local, state, or federal law, or with the provisions of this chapter may result in the suspension or revocation of the certificate of registration (f) Payment of all appropriate fees (1) A registration fee, if applicable, shall be set by resolution of the city council and shall be required only for background check for those applicants of a certified massage business who are not state certified and own five percent or more of the certified massage business. A registration fee shall not be charged to certified applicants. 6.50.060 Registration Process. (a) The police deparhnent shall issue a certificate of registration to any certified sole - --proprietorship that demonstrates all ofthe following: ---- (1) That the operation, as proposed by the applicant, if permitt ed, complies with all applicable laws, including, but not limited to, the city's building, zoning, business license, and health regulations. (2) The owner is the only person employed or used by that business to provide massage services. (3) The owner holds a valid and current state certificate issued pursuant to Chapter 10.5 of the California Business and Professions Code and that the owner/applicant is the same person to whom the CAMTC issued a valid and current state certificate and identification card. 20 (4) That the applicant has not made a material misrepresentation in this application or with respect to any other document or information required by the city with respect to this application or for an application for a city massage permit under applicable law within the last ten years. (b) The police department shall issue a certificate of registration to a certified massage business that demonstrates all of the following: (1) That the operation, as proposed by the applicant, if permitted, complies with all applicable laws, including, but not limited to, the city's building, zoning, business license, and health regulations. (2) The owner holds a valid and current state certiftcate issued pursuant to Chapter 10.5 of the California Business and Professions Code and that the owner/applicant is the same person to whom the CAMTC issued a valid and current state certificate and identification card. (3) The tnassage business employs or uses only state certified massage practitioners whose certifications are valid and current and that owners of the state certificates are the same persons to whom CAMTC issued valid and current identification cards. (4) That the applicant has not made a material misrepresentation in this application or with respect to any other document or information required by the city with respect to this application or for an application for a city massage permit under applicable law within the last five years. (5) That the background check for any applican t/owner authorized by this chapter shows that such person has not been required to register under the provisions of Section 290 of the California Penal Code; within five years preceding the application had a conviction in court of competent jurisdiction for any of the crimes identified in Section 4.40.050(A)(1)(d)(vi)(A) through (G) herein; has not had an individual or business permit or license with an has not been subject to an injunction for nuisan er for hearing before the council, y agency, board, city, county, territory, or state, denied, revoked, restricted, or suspended within the last five years; and ce under Penal Code Sections 11225 through 11235 within the last five years. 6.50.070 Appeal. If registrati on is dewed, applicant has ten (10) days from the date of mailing the notice within which to appeal to the city comicIl by filing a written application for a public hearing with the clerk of the city. Notice and a public hearing shall be given as follows: (a) Upon receipt of the appeal, the city clerk shall set the matt 21 er for hearing before the council, at a regular meeting thereof, within thirty (30) days from the date of filing the appeal, 21 and shall give written notice of the hearing to the applicant at the applicant's address set forth in the appeal by first class mail at least ten (10) days prior to the hearing date. (b) On the date set, the council shall hear the matter, and may continue it from time to t me before reaching a decision. If the council finds that the applicant has satisfactorily met all of the requirements of this chapter, it shall order the issuance of the registration and business license. If it finds that the requirements have not been met satisfactorily, it shall deny the registration. (c) All findings of the comicil shall be final and conclusive upon the applicant. 6.50.080 Business license required. At the time of an initial application for an operator's permit, applicant shall also apply for and furnish the information necessary to obtain a business license as required by Chapter 6.04 of this code. No business license shall be issued until the investigation under this chapter is completed. The business license shall then be issued upon payment of the business license fee as provided in Chapter 6.04 of this code. The business license fee shall be commensurate with the business license fee charged to other professionals as established by this code. 6.50.090 Exemptions from massage practitioner permit requirements. The massage practitioner registration required by this chapter shall not apply to the following: (a) Physicians, surgeons, chiropractors, osteopaths, acupuncturists, nurses and physical therapists, and occupational therapists duly licensed to practice in the state of California, but only when engaged in the practice for which they are so licensed and in accordance with the terms of the licensing. (b) Employees of hospitals, nursing homes, sanitariums, or other health care facili ties duly licensed by the state of California, but only when engaged in the scope of their employment, and only at their place of employment at the health care facility, and only within the scope of and in conformance with the state license. (c) Cosmetologists or barbers who are licensed by the state of Californ ia, but only when engaged in the practice for which they are so registered and in accordance with the terms of the registration. 22 (d) Accredited elementary school, high school, or college coaches and trainers employed by a elementary, high school, or college, but only while acting within the scope of employment to the school. (e) Trainers of semi-professional or professional athletic teams, but only while acting within the scope of employment to the teen. 6.50.100 Registration not entitlement to violate other laws. The issuance of a certificate under this chapter shall not entitle the registrant to engage in any business or practice which for any reason is in violation of any law or ordinance and shall not entitle the holder thereof to carry on any business or practice unless he or she has complied with all the requirements under the other ordinances of the city and all other applicable laws, nor shall it entitle the registrant to carry on any business in any building or on any premises designated in such permit in the event that such business or premises are situated in a zone or locality in which the conduct of such business is a violation of any law. 6.50.110 Health and safety operating requirements. All massage establishments shall be subject to periodic inspection by the city for compliance with the following: (a) A massage establishment shall post a list of services, including prices, in readily understood language in an open, public place on the premises of the establishment. No owner, operator, responsible managing employee, manager, employee, contractor, or registran t shall permit nor offer any massage services on the premises other than those posted on the list. (b) All persons shall only provide massages between the hours of 7:00 a.m. an d 9:00 p.m.. The hours stated here are the maximum permitted hours; actual hours may be further limited by applicable zoning or use permit restrictions. All massage activities must be completed within business hours. Patrons and visitors shall be permitted in the massage business only during hours of operation. The hours of operation shall be displayed in a conspicuous public place in the reception area and in any front window clearly visible from outside of the massage business. (c) No massage business shall place, publish, or distribute any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective clients that any service is available other than those services listed pursuant to this section. Nor shall any massage business employ language in the text of such advertising that would reasonably suggest 23 to a prospective client that any service is available other than those services listed pursuant to this section. (d) All employees a, a massage establishment and massage practitioners shall perform their work fully clothed, be clean and wear clean outer garments whose use is restricted to the establishment. Doors to dressing rooms, bathing rooms, and treatment rooms shall open inward, and shall not be locked. Draw drapes, curtain enclosures, or accordion -pleated closures are acceptable on all inner dressing and treatment rooms in lieu of doors. (e) All establishments shall be provided with clean, laundered sheets and towels in sufficient quantity and shall be laundered after each use thereof and stored in closed, sanitary cabinets. Heavy white paper may be substituted for sheets provided that such paper is used only once for each person and then discarded into a sanitary receptacle. Sanitary approved receptacles shall be provided for the storage of all soiled linens. (f) At least one entrance door allowing access to the establishment and any building it may be in; shall remain unlocked during business hours; notwithstanding this provision, the facility shall also comply with exiting and entrance requirements of other applicable laws and regulations. All premises and facilities shall be maintained in a clean and sanitary condition, and shall be thoroughly cleaned each day of operation. The premises and facilities shall meet all code requirements of the city as to safety of the structure. (g) Minimum lighting shall be at least one sixty (60) watt light in each enclosure where massage services are performed. The light switch for the interior lights in such enclosure will be within the enclosure. There shall be no light in the enclosure that is operated from outside the enclosure. There shall be no sound device (i.e., buzzer or bell) than can be operated from outside the massage enclosure (h) Secure dressing and locker facilities shall be provided for patrons. Security deposit facilities for the protection of valuables of the patrons shall also be available. (i) No massage building located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area shall block visibility into the interior reception and waiting area through the use of curtains, closed blinds, tints, or any other material that obstructs, blurs, or darkens the view into the premises. 0) Each massage establishment shall keep a written record of the date and hour of each treatment; the name of the massage therapist administering the treatment; and the type of treatment administered recorded on a patron release form. Such written record shall be open to inspection only by officials charged with the enforcement of this chapter and for no other 24 purpose. Such records will be kept on the premises of the massage establishment for a period of two (2) years from the date of service. (k) Ail establishments shall comply with the following minimum standards of conduct: (1) No employee, contractor, or massage practitioner shall make any intentional, occasional, or repetitive contact with the mouth, genitals, anus, or breasts of another person in the massage establishment or while providing massage services. (2) No person afflicted with an infection or parasitic infestation transmissible to a patron shall knowingly massage a patron, or remain on the premises of a certified massage business while so infected or infested. (3) All persons on the massage establishment premises must be clothed in non -transparent clothing at all times that shall not expose their genitals, pubic area, or buttocks, or for any operator of a massage business to allow prohibited dress. 6.50.120 Display of signs and permits. No person registered pursuant to this chapter shall begin operations until a recognizable and legible sign has been posted at the main entrance to the business premises. All certificates of registration and shall be posted within the establishment in a location immediately available for inspection for representatives of the city. No person granted a registration pursuant to this chapter shall operate under any other name or at any other location than that specified in the certificate of registration. All signs must in complian The investigating officials of the city, including the health officer, shall have the right to enter the premises from time to time during regular business hours for the purpose of making reasonable inspections to observe and enforce compliance with the provisions of this chapter and building, fire, electrical, plumbing or health regulations. 6.50.140 Revocation or suspension of permits. (a) Certificates of registrati on maybe suspended or revoked upon any of the following grounds: 25 ce with applicable sign ordinances. 6.50. 130 Inspection by officials. The investigating officials of the city, including the health officer, shall have the right to enter the premises from time to time during regular business hours for the purpose of making reasonable inspections to observe and enforce compliance with the provisions of this chapter and building, fire, electrical, plumbing or health regulations. 6.50.140 Revocation or suspension of permits. (a) Certificates of registrati on maybe suspended or revoked upon any of the following grounds: 25 (1) A practitioner is no longer in possession of current and valid CAMTC certification. This subsection shall apply to a sole proprietor or a person employed or used by a massage business to provide massage. (2) An owner or sole proprietor: is requ red to register under the provisions of California Penal Code Section 290 (sex offender registration); is convicted of California Penal Code Section 266i (pandering), 315 (keeping or residing in a house of ill -fame), 316 (keeping disorderly house), 318 (prevailing upon person to visit a place for prostitution), 647(b) (engaging in or soliciting prostitution), 653.22 (loitering with intent to commit prostitution), 653.23 (supervision of prostitute); has a business permit or license denied, revoked, restricted, or suspended by any agency, board, city, county, territory, or state; is subject to an injunction for nuisance pursuant to Califomia Penal Code Sections 11225-11235 (red light abatement); is convicted of a felony offense involving the sale of a controlled substance; is convicted of any crime involving dishonesty, fraud, deceit, violence, or moral turpitude; or is convicted in any other state of an offense which, if committed in this state, would have been punishable as one or more referenced offenses in this subdivision. (3) The city determines that a material misrepresentation was included on the application for a certificate of registration or renewal. (4) Violations of any of the following occurred on the premises of a massage business or were committed by a practitioner: California Business and Professions Code Section 4600 et seq.; any local, state, or federal law; or the provisions of this chapter. (b) Prior to the suspension or revocation of any permit issued under this chapter, the registrant shall be entitled to a hearing before the city manager or the manager's designated representative, at which time evidence will be received for the purpose of determining whether or not the registration shall be suspended or revoked or whether the registration may be retained. In the event the registration is suspended or revoked, the notification of the reasons for such suspension or revocation shall be set forth in writing and sent to the registrant by means of first class mail. The manager may impose conditions or restrictions on the registration in lieu of suspension or revocation to attempt to eliminate violations or nuisances that have been found. (c) In the event of suspension or revocation of any registration, the registrant may appeal to the city council in the manner as provided in Section 6.50.070. 26 6.50.150 Sale or transfer of establishment. Upon sale, transfer or relocation of a massage establishment, the registration shall not be transferable without the written approval of the chief of police and the finance director. An application for such a change shall be accompanied by a nonrefundable filing and investigation fee as established by resolution adopted by the city council from time to time and provide all of the information required in Section 6.50.040. 6.50.160 Notice of changes. All persons registered pursuant to this chapter shall report immediately to the city finance department and the police department all changes of residence or business address or change of ownership of the establishment or service. Failure to give such notice within fifteen (15) days of the event shall render the registration null and void. 6.50.170 Renewal of registration. A massage business shall apply to the City to renew its registration certificate at least thirty (30) days prior to the expiration of said City registration certificate. If an application for renewal of a City registration certificate and all required information is not timely received and the certificate expires, no right or privilege to provide massage shall exist. DIVISION 2: If any section, subsection, sentence, clause or phrase of flus Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. 27 DIVISION 3: This Ordinance shall be published in a newspaper of general circulation in accordance with California Government Code Section 36933, published, and circulated in the City of Burlingame, and shall be in full force and effect thirty (30) days after its final passage. ANN KEIGHRAN, Mayor I, MARY ELLEN KEARNEY, City Clerk of the City of Burlingame, do hereby certify that the foregoing ordinance was introduced at a regular meeting of the City Council held on the 4th day of November 2013 and adopted thereafter at a regular meeting of the City Council held on the � $ day of November 2013, by the following vote: AYES: COUNCILMEMBERS: BAYLOCK, BROWNRIGG, DEAL, KEIGHRAN,NAGEL NOES: COUNCILMEMBERS: NONE ABSENT: COUNCILMEMBERS: NONE t MARY ELLEN KEARNEY, City Clerk i�3