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Ord 2178 - Regulation of Massage TherapistsORDINANCE 2178 ORDINANCE OF THE TOWN OF LOS GATOS AMENDING ARTICLE XI OF CHAPTER 14 OF THE LOS GATOS TOWN CODE REGARDING THE REGULATION OF MASSAGE THERAPISTS WHEREAS, Article XI of Chapter 14 of the Town Code was enacted in 2007 (Ordinance No. 2155) for the purpose of regulating massage therapy establishments and massage therapy practitioners to better ensure that such valuable health and therapeutic services are provided consistent with the public health, safety and welfare, and WHEREAS, in 2008, State Senate Bi11731 ("SB 731") was adopted into law amending the California Business and Professions Code to establish a voluntary statewide regulatory and certification process for massage therapists and practitioners, which process would supersede existing local regulation in cases where practitioners elect to become certified pursuant to SB 731, and WHEREAS, Article XI of Chapter 14 of the Town Code must be amended to ensure that its provisions only apply in situations that are not superseded by SB 731, specifically where massage therapists and practitioners are not certified by and operating in accordance with the statewide regulatory protocol established under SB 731, and WHEREAS, additional non-substantial amendments to Article XI of Chapter 14 of the Town Code are appropriate to further clarify its meaning and application. THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS FOLLOWS: SECTION I Sections 14.110.015 through and including 14.110.100 of Article XI of Chapter 14 of the Los Gatos Town Code are hereby repealed in their entirety and replaced with the following: Sec. 14.110.015. -- Purpose and Intent. (a) Purpose. (1) In enacting these regulations, the Town of Los Gatos Town Council (hereafter referred to as "Town Council") recognizes that massage is a viable professional healing art offering the public valuable health and therapeutic services. (2) It is the purpose and intent of the Town Council that the operation of Massage Establishments and persons offering massage be regulated in the interests of public health, safety, and welfare by providing minimum building, sanitation, and health standards and to ensure that persons offering massage shall Page 1 of 19 possess the minimum qualifications necessary to operate such businesses and to perform such services offered. (3) It is the purpose and intent of this Article XI to articulate regulations to ensure that persons offering massage services are qualified and trained and can be expected to conduct their work in a lawful and professional manner. (b) Conflicts with other provisions of this Code. In the event of any conflicts or inconsistencies between the provisions of this Article XI and the remaining provisions of this Chapter 14 or with the provisions of any other chapter(s) of the Town Code, the provisions of this Aj-ticle XI shall control, unless to do so would be inconsistent with the stated purpose of this Article XI. Any massage establishment is further regulated pursuant to Chapter 29 of this Code. (c) Responsibility for enforcement. The primacy responsibility for enforcement of the provisions of this Article XI shall be vested in the Chief of Police. Sec. 14.110.015. --Definitions. For purposes of this Article XI, the following words, terms and phrases are defined as follows: California Massage Therapy Council (CAMTC) The governing non-profit board that is authorized to evaluate qualifications of massage therapists and issue certification in the State of California. There are two levels of certification: CMT (Certified Massage Therapist) and CMP (Certified Massage Practitioner). Massage means any method of treating the external parts or surfaces of the human body by bathing, rubbing, pressing, stroking, pounding, kneading, tapping, vibrating, or touching or stimulating with the hands or any part of the body, or any instrument. Massage establislunent means any establishment, having a fixed place of business where any person, firm, association, partnership, corporation, joint venture or a combination of individuals engages in, conducts, carries on or permits to be engaged in, conducted or carried on for consideration, massages or health treatments in the Town in which massages are given in return for compensation of any type; including but not limited to any hot t«b/sauna establishment, personal fitness training center, spa, gymnasium, athletic facility, health club or office in which massage services are made available to clients. Massage therapist who performs massage in return for compensation of any type and who has completed a minimum of tluee hundred (300) or more verifiable hours in a resident course of study from a recognized school on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology and hygiene, with at least seventy-five (75) hours of the required three hundred (300) hours in the areas of demonstration and practice of massage techniques fiom a recognized school, that which provides a diploma or certificate of completion upon successful completion of such resident course of study. Page 2 of 19 Massage therapist trainee means any person who is defined in "massage therapist" above, and who has written proof he/she is currently em•olled in a recognized school of massage and has completed a minimum of fifty (50) hours of instruction from said recognized school and will be working under the direct supervision of a lawfully permitted massage therapist as provided in this Article XI, and will only be conducting massage therapy on staff or permitted therapists of that establishment, and not members of the public. Out-call massage service means any therapist who provides massage services at a location designated by the customer or client or the Massage Therapist or the out-call massage service, other than at the designated approved massage establishment. Person means any individual, partnership, firm, association, corporation, joint venture or any other combination of individuals for the purpose of doing business. Police chief means the Los Gatos/Monte Sereno Police Chief or his or her designee. Recognized school means any school or institution of higher learning which has been approved pursuant to California Education Code Section 94300 et seq. or other applicable state law or regulations of California or another state, or other country which requires a resident course of study on the theory, ethics, history, practice, methods, profession or work of massage, including the study of anatomy and physiology and hygiene, and which provides a diploma or certificate of completion upon successful completion of such course of study. At least seventy- five (75) hours of the required three hundred (300) hours shall be in the areas of demonstration and practice of massage teclmiiques, Schools offering correspondence course(s) not requiring actual attendance of class shall not be deemed a recognized school. The Town shall have the right to confirm the fact that the applicant has actually attended classes in a recognized school for the aforementioned minimum time period. State Certificate Holder means a person who holds a current and valid California state certificate from the CAMTC as a massage practitioner or massage therapist, per Business and Professions Code sections 4600-4620. Sec. 14.110.020 -- Exemptions. The provisions of this chapter shall not apply to: (a) Physicians, surgeons, chiropractors, acupuncturists, osteopaths, registered nurses, physical therapists or other health professionals who are duly licensed to practice their respective professions under the laws of the State of California. (b) Persons who hold a current and valid CAMTC state certification and who are practicing consistent with the qualifications and requirements of such certificate. (c) Barbers or cosmetologists who are duly licensed under the laws of the State of California while performing massage within the scope of their licenses. Page 3 of 19 (d) Persons administering massages or health treatments involving massage to other persons who are participating in a recreational or special event that has been approved by the Town, provided that the following conditions are met: (1) The massage services are made available equally to all participants in the event; (2) The event is open to participation by the general public or a significant segment of the public; (3) The massage services are provided during the event in an open environment at the site of the event; (4) The sponsors of the event have approved the provision of massage services at the event; and (5) The persons providing the massage services are in compliance with all applicable Town Codes and other laws. Sec. 14.110.025 -- Permit/Certification Requirements for Massage Establislnnents, Massage Therapists. (a) Massage Establishments. No person shall establish, operate or maintain a Massage Establislnnent within Town limits without ensuring that each massage practitioner/therapist (whether an employee or independent contractor) working within the establishment has a cui~ent and valid state certification through CAMTC or has obtained a current .and valid massage permit from the Police Department. (b) Massage Therapist permit. No person shall practice massage or give massages in return for compensation of any type within Town limits without a current and valid state certification from the CAMTC OR absent such certificate, obtaining from the Police Chief and maintaining in effect a Massage Therapist permit. It is unlawful for any person to practice massage or give massages in return for compensation while his/her Massage Therapist permit or state certification has been suspended or revoked, or has expired. Sec. 14.110.030 -- Educational Requirements for Massage Therapists. (a) General educational requirements. Except as indicated below, all applicants for a Massage Therapist permit must meet the following educational standards in order to qualify for such permit, at the discretion of the Chief of Police: (1) Possession of a diploma or certificate of completion from a recognized school which shows satisfactory completion of a resident course of study of a minimum of three hundred (300) verifiable hours on the theory, ethics, history, practice, and/or methods of massage therapy, including the study of anatomy, physiology and hygiene, with at least seventy-five (75) hours of the required three hundred (300) hours in the areas of demonstration and practice of massage techniques; or Page 4 of 19 (2) Possession of a diploma or certificate of completion from a recognized school or public school showing satisfactory completion of a minimum of three hundred (300) verifiable hours of anon-repetitive curriculum which covers the subjects described in subsection 1 above, and a transcript or transcripts from a college or junior or community college in the State of California, or a college or junior or community college in another state from which courses would be acceptable for transfer credit to any college in the California State University and College System, which shows completion, with a passing grade or better, of at least eight (8) quarter units or six (6) semester units of courses in health theory, health care, anatomy, physiology, psychology, bio- mechanics or kinesiology; or (3) Degrees, certificates, diplomas, and course work received at other institutions, American or foreign, shall be accepted only if such institution is approved by an education agency in that state or country and the curriculum or course of studies meets the criteria set out by this code. Course descriptions, school catalogs or bulletins may be required by the department to substantiate the curriculum. (b) Exemptions from educational requirements. The following persons are exempt from the educational requirements set forth in subsection (a) above: (1) Holders of Massage Establishment business licenses and Massage Therapists business licenses issued by the Town before the effective date of this Article XI shall have a period of eighteen (18) months from the effective date of this Article XI to satisfy the educational requirements set forth in subsection (a) above. (2) At the end of 18 months from the effective date of this Article XI, any therapist who does not have the required 300 hours of education will not be permitted to practice in Los Gatos. However, consideration can be given by the Chief of Police at his/her discretion, to those therapists who can prove through documentation that they are currently eiuolled in coursework associated with massage therapy and compliance of the 300 hour requirement is expected in a reasonable amount of time. Sec. 14.110.035. -- Applications for Massage Therapist Permits. (a) Submission of application. All persons who wish to obtain a Massage Therapist permit from the Town shall file a written application with the Police Chief on a form provided by the Town, which contains the following information: (1) The full name, including any nicknames or other names used presently or in the past, and the present address and phone number of the applicant; (2) The applicant's two (2) most recent addresses within the last seven (7) years, and the dates of residence at each address; Page 5 of 19 (3) Proof the applicant is over eighteen (18) years of age; (4) The applicant's height, weight and colors of eyes and hair; (5) The applicant's driver's license and/or California LD. number (if any) and social security number; (6) The applicant's two (2) most recent employers within the last seven (7) years, including their names, addresses and phone numbers, and the position held by the applicant; (7) The names and addresses of any massage facility or other businesses involving massage by which the applicant has been employed, or self-employed as a Massage Therapist, within the past ten (10) years; (8) Any criminal conviction on the part of the applicant for offenses other than traffic violations within the ten (10) years preceding the date of the application; (9) Any criminal charges pending against the applicant at the time of the application, other than traffic citations, the name and location of the court in which the criminal charges are pending and the applicable case numbers; (10) Whether the applicant has ever had a license, certificate or permit related to the practice of massage, or the operation of a Massage Establislunent, or other business involving the practice of massage, suspended or revoked within the ten (10) years preceding the date of the application, the dates and reasons for any such suspensions or revocations, and the name and location of the jurisdiction or public agency which suspended or revoked such license, permit or certificate; (11) Whether the applicant, as a member of a corporation or partnership, has ever operated or been employed at any business which has been the subject of an abatement proceeding under the California Red Light Abatement Act (California Penal Code Sections 11225 through 11325) or any similar laws in other jurisdictions. If the applicant has previously worked at such a business, he/she should state on the application the name and address of the business, the dates on which the applicant was employed at such business, the name and location of the court in which the abatement action occurred, the applicable case number and the outcome of the abatement action; (12) Whether the applicant provided sufficient information to the Town's satisfaction that they meet the educational requirements set forth in section 14.110.030. (13) Whether the applicant had previously applied to the Town for a Massage Therapist permit, the date of the previous application and any other name(s) under which the application was made; (14) The name and address of the owner of the real property upon or in which the business is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized aclaiowledgment from the owner of the property that a Massage Establislunent will be located on his/her property. (15) Proof of malpractice insurance in the stun of not less than one hundred thousand dollars ($100,000.00) per massage therapist licensed, or to be licensed, at the Massage Establishment up to a maximum of five hundred thousand dollars ($500,000.00); this requirement can be satisfied by malpractice insurance being provided in the name of individual Massage Therapist or establishment. Page 6 of 19 16) Written authorization for the Town, its agents and employees, to seek information and to conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant. (17) The applicant shall advise the Town in writing of any change of address or change in fact(s) represented to Town which may occur during the Town's processing of the application; and (18) A statement under penalty of perjury that the applicant has not knowingly and with the intent to deceive made any false, misleading or fraudulent statements or omissions of fact in his/her application or any other documents required by the Town to be submitted with the application. (b) Other required information. Applicants Massage Therapist permits shall also submit the following information to the Police Chief at the time of their application: (1) A birth certificate or other legal documentation that verifies the identity of the applicant and verifies that the applicant is over eighteen (18) years of age; (2) A diploma, certificate of completion, transcripts from each school or institution from which the Massage Therapist has obtained training or other written proof acceptable to the Police Chief that the applicant has met the educational requirements set forth in section 14.110.030. Diplomas, certificates of completion and transcripts shall indicate the number of hours or training received by the certificate holder. (3) Other related information requested by the Police Chief in order to evaluate the background and qualifications of the applicant for the permit sought. This may include information or documentation to indicate whether the Massage Therapist is affiliated with or a member of any recognized national or state massage therapy association or organization. (c) Payment of permit fees. At the time of filing an original application for a Massage Therapist permit, applicants shall pay Massage Therapist permit fees (as applicable) in an amount established by a resolution of the Town Council. All fees shall be non-refundable. (d) Processing of application and investigation. Upon receipt of an application for a Massage Therapist permit, the Police Chief shall review the application and supplementary material. If it is clear from the face of the application and supplementary materials that the applicant is not qualified for a permit, or the application is incomplete, the application may be denied without further investigation. If it appears from the face of the application and supplementary material that the applicant may be eligible for the permit sought, the Police Chief shall verify the information submitted by the applicant and shall further investigate the qualifications of the applicant as follows: (1) Photographs/fingerprints/review of criminal history. The Police Chief shall require a recent photograph of the applicant. Page 7 of 19 Applicant shall also be responsible for submitting fingerprints pursuant to "Livescan" procedures and pay all costs associated with such submittal. The applicant's fingerprints will then be submitted to the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI) for evaluation. Upon receipt of the report from the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI), the police chief shall review the criminal history (if any) of the applicant. (2) Investigation of location and premises of Massage Establislnnent. Upon receipt of an application for a new Massage Establislnnent, the Police Chief shall refer the application to the Town's applicable department's which shall review the application and, if necessary, inspect the premises to ensure that the operation of the business at the designated site will comply with the provisions of this Article XI and the Town's zoning, building and fire safety standards, and any other applicable Town codes. If a use permit is required for the Massage Establislnnent the applicant shall comply with the Town's zoning code. No home occupation permit shall be issued for a massage establislnnent or massage activities. (3) Additional investigation. The Police Chief may conduct additional investigation in a manner authorized by law when necessary to determine whether the applicant meets the qualifications for a permit pursuant to this Article XI. Sec. 14.110.040 -- Grant or Denial of Application for Massage Therapist Permit. (a) Time for grant or denial of applications. The Police Chief shall grant or deny the application for a Massage Therapist permit within thirty (30) calendar days of the applicant's submission of the application and all required supplementary material When necessary to conduct a complete investigation of an application, the Police Chief may extend this time to a maximum of sixty (60) calendar days. Granting of a permit requires the massage establislnnent and/or therapist to be in compliance with Chapter 29 of this Code. (b) Grounds for denial of Massage Therapist permit. The Police Chief shall deny an application for a Massage Establislnnent, Managing Employee permit or Massage Practitioner permit if any of the following circumstances exist: (1) The application is incomplete and/or required supplementary materials are not submitted on a timely basis; (2) The applicant does not have the required educational qualifications, unless the applicant is exempted from these requirements pursuant to section 14.110.030 (b); (3) The applicant has previously had a Massage therapist permit or similar license, certificate or permit revoked by the Town or any other public agency in Page 8 of 19 any state or country, within five (5) years. Any revocation beyond five (5) years will be reviewed, and discretion for approval given by, the Chief of Police. (4) The applicant has made a false, misleading or fraudulent statement or omission of fact in his/her application or other materials submitted with the application; (5) The applicant, including applicant as a corporation or partnership, or former employer of the applicant while the applicant was so employed, has. been successfully prosecuted in an abatement proceeding under the California Red Light Abatement Act (Penal Code sections 11225 through 11325) or any other similar laws in another jurisdiction; (6) The applicant has been convicted of: (a) An offense which requires registration pursuant to California Penal Code section 290; or a violation of sections 266(h), 266(i), 311 through 311.7, 314, 315, 316, 318 or 647(b), 647(d), 647(f) 647.1 of the California Penal Code, or equivalent offenses under the laws of another jurisdiction, including any other State or Country. (b) A prior offense which involves violation of California Health and Safety Code sections 11351 tluough 11354, 11358 tluough 11363, 11378 through 11380, or the sale of controlled substances specified in California Health and Safety Code sections 11054, 11056, 11057 or 11058, or equivalent offenses under the laws of another jurisdiction, including any other state or country. (c) Any offense involving dishonesty, fraud, deceit or the use of force or violence upon another person in the last 10 years; or (d) Any offense involving sexual misconduct. (e) For purposes of this section, a plea of "polo contendere" may also serve as the basis for the denial of a Massage Therapist permit because the above- listed underlying offenses bear a substantial relationship to the qualifications, fiulctions or duties of a Massage Therapist or Establislnnent. (7) The operation of the Massage Establishment would violate the Town's zoning, btulding or fire regulations, or other provisions of law or the Town Code. (a) Notice to applicant of grant or denial of application. The Police Chief shall give written notice to the applicant of the grant or denial of the application for a permit by certified mail or by personal service. If the application is denied, the notice shall advise the applicant of the reasons for the denial and of his/her right to appeal the decision to the Town Manager through the procedures set forth in subsection (d) below. Page 9 of 19 (b) Appeal of denial of Massage Therapist permit to the Town Manager. Upon the denial of an application for a Massage Therapist permit by the Police Chief, the applicant may appeal to the Town Manager tluough the following procedures: (1) Request for appeal hearing. The applicant shall file a written request for an appeal hearing, which states the specific grounds on which the decision of the Police Chief to deny the permit is contested, with the Town Manager's office within ten (10) calendar days of the personal service of the Police Chief s decision to the applicant at the most recent home or business address on file with the police department, or within ten (10) calendar days of service of the Police Chief s decision in the United States mail by certified mail. (2) Notice of time and place of hearing. Upon receipt of a timely request for an appeal hearing, the Town Manager's office shall notify the applicant in writing of the date, time and place of the hearing before the Town Manager or designee, which shall not be less than ten (10) calendar days after the service of such written notice on the applicant by in-person delivery at the most recent home or business address on file with the Town or ten (10) calendar days after the deposit of the notice in an envelope addressed to the applicant in the United States mail by certified mail. (3) Hearing before the Town Manager or designee. At the hearing, both the applicant and the Police Chief shall have the right to appear and be represented by counsel, and to present evidence and arguments relevant to the grounds on which the decision to deny the application is appealed. The burden of proof shall be on the applicant to demonstrate that he/she meets the qualifications for a Massage Therapist permit and is entitled to the issuance of such permit. (4) Decision of the Town Manager or designee. Within ten (10) calendar days of the hearing, the Town Manager or designee shall issue a written decision, which states whether the decision of the Police Chief to deny the application is upheld or reversed, and the reasons for this determination. The decision shall be served upon the applicant by personal service or by certified mail. The decision of the Town Manager or designee shall be final. Page 10 of 19 Sec. 14.110.045. -- Business License. It is unlawful for any person, whether an employee or independent contractor of a massage establislnnent, to open or operate a Massage Establishment or self employment of massage therapy without obtaining and maintaining in effect a Town business license and paying a business license tax. Sec. 14.110.050 -- Operating Reduirements for Massage Establishments. Unless otherwise specified herein, all Massage Establishments shall comply with the following operating requirements. (a) Exterior signs. A recognizable and legible sign should be posted at the main entrance identifying the business and which clearly identifies the establislnnent to foot and/or automobile traffic. An additional "Massage" sign need not be in addition to the primary business sign. The sign shall be in compliance with Chapter 29 of this Code. (b) Display of Massage Therapist permit. Every Massage Practitioner employed by the Massage Establishment shall hold a valid CAMTC certification or Massage Therapist permit issued by the police department. Each state certified Massage therapist/practitioner or Police Department permit holder shall be issued a photo identification card from the police department. The Massage Therapist permit holder shall display the identification card on his/her person during business hours, or have the identification card displayed in plain view. (c) Dressing/massage room. Clients of the Massage Establishment shall be furnished with adressing/massage room, or private area for changing clothes. (d) Payment/tips. All massage services shall be paid for in the reception area, and all tips, if any, shall be paid for in the reception area. Massage Establislunents may utilize a system where tip envelopes are provided in the treatment rooms to be utilized and deposited by the client in the reception area. (e) Alcohol-prohibited. No alcoholic beverages may be possessed or consumed on the premises of the Massage Establislunent. (f) No condoms. No condoms shall be kept at the Massage Establislunent unless they are the personal property of persons on-site, and they are for the individual's personal use outside the business premises. (g) Standard of dress. The holder of the Massage Therapist permit or state certification, and all other employees of the Massage Establislunent shall remain fitlly clothed at all times while on the premises of the Massage Establishment. At a minimum, such clothing shall be made of anon-transparent material and shall not expose the buttocks, genital area or breasts of any employee or the holder of the permit. Bikini swimsuits and halter tops shall not be acceptable. Page 11 of 19 (h) Operating hours. All Massage Establishments shall be closed for business by no later than 10:00 p.m. and shall open for business no earlier than 6:00 a.m. A Massage Establishment operating under a Conditional Use Permit (CUP) approved prior to the enactment of this ordinance may continue to operate under the hours permitted in the use permit. The Town may set the specific operating hours for each Massage Establishment through the conditional use permit process. It shall be unlawful for any Massage Therapist, or other employee of a Massage Establishment, to give or practice massage during the hours when the Massage Establishment is closed. (i) List of services. A list of services available and the cost of such services shall available in an open public place within the premises, and they shall be described in readily understandable language. Nothing in this section shall preclude the list of services to be printed in another language other than English. No owner, operator, manager, and/or responsible, of a Massage Establishment shall permit, and no Massage Therapist shall offer or perform, any service other than those posted. (j) Records. Every Massage Establishment shall keep a written record of the date and hour of each service provided; the first and last name of each patron and the service received; and the first and last name of the Massage Therapist administering the service. Said records shall be open to inspection by Town officials, limited to sworn members of the Police Department, Town code compliance officer and the Town Attorney, who is charged with enforcement of this Article XI. A valid subpoena should be obtained by these specific officials prior to inspection of records. These records may not be used by the Massage Establishment for airy other purpose than as records of service provided, and unless otherwise required by law, they shall not be provided to third parties by the Massage Establislunent. Said records shall be retained on the premises of the Massage Establishment business office for a period of not less than three (3) years. Sec. 14.110.055 -- Sanitation Requirements/Condition of Premises. (a) Required maintenance of Massage Establishments. All premises and facilities of the Massage Establishments shall be maintained in a clean and sanitary condition and shall be thoroughly cleaned after each day of operation. The premises and facilities shall meet applicable Code requirements of the Town, including but not limited to those related to the safety of the structure, adequacy of the plumbing, heating, ventilating and waterproofing of rooms in which showers, water or steam baths are used. (b) Linens. All Massage Establishments shall provide clean, laundered sheets, towels, and other linens in sufficient quantity for use by their clients. Such linens shall be laundered after each use and stored in a sanitary manner. No coimnon use of linens or towels shall be permitted. Heavy white paper may be substituted for sheets on massage tables, so long as such paper is used only once for each client and is then discarded into a sanitary receptacle. Sanitary receptacles shall be provided for the storage of all soiled linens. (c) Privacy standards for massage rooms, dressing rooms and rest rooms. The Massage Establislnnent shall provide doors on all of its dressing rooms and massage rooms. Non- Page 12 of 19 transparent draw drapes, curtain enclosures or accordion-pleated enclosures are acceptable in lieu of doors for dressing and massage rooms. (d) No residential use. No part of the Massage Establishment shall be used for residential or sleeping purposes. No cooking or food preparation will be allowed on the premises unless it is within an employee only designated kitchen area. Sec. 14.110.060. -- Prohibited Acts. (a) Touching of sexual and genital parts of client during massage. No Massage therapist, or any other employee of a Massage Establishment shall place either his/her hand or hands upon, or touch with any part of his/her body, a sexual or genital part of any other person in the course of a massage, or massage a sexual or genital part of any other person. Sexual and genital parts shall include the genitals, pubic area, anus or perineum of any person or the vulva or breast of a female. In the case of breast massage, female clients shall sign a written consent form, provided by the establishment and/or practitioner prior to providing breast massage. (b) Uncovering and exposure of sexual and genital parts before, during or after massage. No Massage Therapist, or other employee of a Massage Establishment shall uncover and expose the sexual or genital parts, as defined in subsection (a), above, of a client or themselves in the course of giving a massage, or before or after a massage. This subsection does not prohibit a client from turning over in the course of a massage, so long as the Massage Therapist holds a towel, sheet, blat~l~et or other drape over the client to protect his/her genital and sexual parts from exposure. (c) Violation of provisions of this section may be charged separately as a felony as permitted by state law. Sec. 14.110.065. -- Out-Call Massage Services. Any massage therapist who has complied with all applicable provisions of this Article XI may provide out-call massage services to clients within the Town of Los Gatos. Such Massage Therapist shall maintain their permits upon their persons; or within their immediate reach, at all times while performing massage in the Town and shall display these upon the request of any client, police officer or code compliance officer. Sec. 14.110.070. -- Transfer of Massage Therapist Permit. No Massage Therapist permit issued pursuant to this Article XI shall be transferred, altered in name, or assigned in any manner, whether by operation of law or otherwise, from location to location or from person to person, except that any person possessing a valid Massage Therapist permit shall be able to move from one employer to another without filing a new application or paying a new fee, so long as the permit holder notifies the police chief of the change in his/her employment within five (5) business days of their move date to the new location. Page 13 of 19 Sec. 14.110.075. Expiration and Renewal of Massage Therapist Permit; Payment of Renewal Fee. (a) All Massage Therapist permits shall expire annually on the date of their issuance, unless revoked sooner by the Police Chief. Applications for renewal of a permit must be submitted to the Police Chief by no later than sixty (60) calendar days before the expiration of such permit on a form provided by the police department, which shall require the applicant for renewal to update the information contained in his/her original application. The applicant must pay the Town anon-refundable renewal fee, in the amount established by resohrtion of the Town Council, at the time of filing his/her application for renewal. After investigating the application for renewal, the Police Chief may renew the permit if the applicant continues to meet the standards for the issuance of a permit, and none of the grounds for denial of a permit set forth in section 14.110.040 (b) exist. The Police Chief shall give the applicant for renewal written notice of his/her decision within sixty (60) calendar days of the submission of the application for renewal to the police department by personal service of the decision to the applicant at his/her most recent home or business address on file with the police department or deposit of the decision in the United States mail by certified mail If the application is denied, the notice shall state the specific grounds for the denial and that the applicant may appeal to the Town Manager through the procedures set forth in section 14.110.040 (7) (d). (b) If the holder of a Massage Therapist permit does not file a timely application for renewal sixty (60) calendar days before expiration of the permit), he/she shall be required to file an application for a new permit pursuant to section 14.110.025 and to pay the applicable fees. Sec. 14.110.080 -- Suspension and Revocation of Massage Therapist Permit. (a) Grounds for suspension or revocation of Massage Therapist permit. The Police Chief may suspend for a period of up to nine (9) months or revoke a Massage Therapist permit, according to procedures set forth in subsection (c) below, if there is probable cause to believe that: (1) The permit holder has operated or managed the Massage Establishment in a manner which violates any provision of this Article XI, or other applicable Town Code provisions, state or federal law; (2) The permit holder has commmitted any offense involving lewdness, indecent exposure, prostitution, human trafficl~ing or any other offense which would be grounds for denial pursuant to section 14.110.040 or employees of the Massage Establishment have committed such offenses in the course of their employment and the permit holder has permitted them to do so or has failed to prevent them from doing so; Page 14 of 19 (3) Has made a false or misleading statement or omission of fact on his/her application for a permit, or for renewal of the permit, or in any supplementary materials submitted with the application; or (4) Is operating or managing the Massage Establishment in a maimer which poses a danger to the health and safety of clients and/or the public, or without due regard for proper sanitation or hygiene. (b) Grounds for revocation or suspension of Massage Therapist permit. The Police Chief may suspend for a period of up to nine (9) months or revoke a Massage Therapist permit according to the procedures set foz-th in subsection (c) Below, if there is probable cause to believe that: (1) The Massage Therapist has violated any provision of this Article XI, or other applicable provisions of the Town Code; (2) The Massage Therapist has committed any violation of law related to lewdness, indecent exposure, prostittrtion, human trafficking or any offense which would be grounds for denial of an application for a Massage Therapist permit pursuant to section 14.110.040; (3) The Massage Therapist has made a false or misleading statement or omission of fact on his/her application for a permit or for renewal of a permit or in any supplementary materials submitted with such applications; or (4) The Massage Therapist has practiced massage in a manner which poses a danger to the health and safety of clients or the public, or without due regard for proper sanitation or hygiene. (d) Procedure for revocation or suspension of Massage Therapist permit: (1) Notice to holder of permit. Whenever the Police Chief has probable cause to believe that grounds for the suspension or revocation of a Massage Therapist permit exist, he/she shall give the holder of the permit written notice of the date, time and place of a hearing to be held before the Police Chief on whether the permit should be suspended or revolted. The notice shall state the alleged grounds for the proposed revocation or suspension of the permit, and the notice shall be served on the holder of the permit personally at the most recent home or business address on file with the police department or by deposit of the notice in the United States mail by certified mail. Said notice shall also state that if no Page 15 of 19 written request for a hearing is timely received, the applicant shall be deemed to waive its rights to a hearing. (2) Hearing before Police Chief. The hearing on the revocation or suspension of the permit shall be held before the Police Chief or his/her designee no less than ten (10) calendar days after the personal service of the notice to the holder of the permit at the most recent home or business address on file with the police department, or no less than ten (10) calendar days after deposit of the notice, addressed to the holder of the permit or certificate, in the United States mail by certified mail. At the hearing, the holder of the permit and a representative of the Town shall have the right to appear and to be represented by counsel, and to present evidence and arguments which are relevant to a determination of whether grounds for suspension or revocation of the permit or certificate exist. (3) Decision of Police Chief. Within ten (10) calendar days after the hearing, the Police Chief shall issue a written decision which states whether the permit is suspended or revoked, the length of any suspension, and the factual basis for the decision, and that the holder of the permit may appeal any suspension or revocation to the Town Manager tluougli the procedures set forth in paragraph (4), below. The decision of the Police Chief shall be served on the holder of the permit by personal service at the most recent home or business address on file with the police department or deposit of the notice, addressed to the holder of the permit, in the United States mail by certified mail. Said notice shall also state that if no written request for an appeal hearing is timely received, the applicant shall be deemed to waive its rights to an appeal hearing. (4) Request for appeal hearing before the Tov~nl Manager. The holder of the permit may appeal the decision of the Police Chief by filing a written request for an appeal hearing, which states the specific grounds on which the decision of the police chief is contested, with the Town Manager's office within ten (10) calendar days of the personal service to the holder of the permit of the Police Chief s decision at the most recent home or business address on file with the police department, or within ten (10) calendar days of service of the decision by deposit of the notice, addressed to the holder of the permit, in the United States mail by certified mail. (5) Appeal hearing before the Town Manager. Upon receipt of a timely request for an appeal hearing, the Town Manager's office shall notify the permit holder i11 writing of the date, time and place Page 16 of 19 of the hearing before the Town Manager or designee which shall not be less than ten (10) calendar days after service of such written notice on the permit holder by personal service at the most recent home or business address on file with the police department, or ten (10) calendar days after service of the notice by deposit of the notice, addressed to the holder of the permit or certificate, in the United States mail by certified mail. At the hearing, both the holder of the permit and the Police Chief shall have the right to appear and be represented by counsel and to present evidence and arguments which are relevant to the grounds for the appeal, as stated in the request for an appeal hearing. Within ten (10) calendai days of the hearing, the Town Manager or designee shall issue a written decision that states whether the decision of the Police Chief is upheld, modified or reversed, and the length of any suspension. The decision shall be served on the holder of the permit by in-person delivery or by certified mail. The decision of the Town Manager or designee shall be final. (6) Effective date of revocation or suspension. Any suspension or revocation of a permit shall become effective immediately upon the personal service of the written decision of the Police Chief, or, in the event of an appeal, the Town Manager or designee, to the holder of the permit at the most recent home or business address on file with the city, or within five (5) calendar days of the deposit of such decision addressed to the holder of the permit into the United States mail by certified mail. (7) Surrender of suspended or revoked Massage Therapist permit to Police Chief. Upon a written decision by the Police Chief, or in the event of an appeal, by the Town Manager or designee, which suspends or revokes a Massage Therapist permit, the permit shall immediately be surrendered to the Police Chie£ In the case of a suspension, the Police Chief shall return the permit after the period of suspension has ended. Sec. 14.110.085. -- Criminal Penalties. Except as specified in section 14.110.060, a violation of any provision of this Article is a misdemeanor and may be prosecuted by the Town in the name of the people of the State of California. The maximum fine or penalty for any violation of this Article XI shall be one thousand dollars ($1000.00), or a term of imprisonment in the county jail for a period not exceeding six (6) months. Page 17 of 19 Except as otherwise provided, every such person shall be guilty of a separate offense for each and every day during any portion of which any violation is committed, continued or permitted by such person, and shall be punishable accordingly. Sec 14.110.090 -- Inspection by officials. Any sworn investigating official of the Police Department, Town of Los Gatos Code Compliance Officer, Town Attorney or County Fire Department officials charged with investigating and enforcing compliance with this Article XI, shall have the right to enter the Massage Establislnnent fiom time to time during regular business hours for the purpose of malting reasonable inspections to observe and enforce compliance with applicable regulations, laws, codes and the provisions of this Article XL Sec. 14.110.095 -- Massage Establishment Operated in Violation of this Article XI Deemed a Public Nuisance. Any Massage Establishment which is opened, operated or maintained contrary to the provisions of this Article XI shall be deemed a public nuisance. In addition to, or in lieu of any other available legal remedies, the Town Attorney or District Attorney of Santa Clara County may commence a civil legal action or actions in a court of competent jurisdiction to abate such nuisance and to enjoin the continued operation and maintenance of the Massage Establishment in a mamler prohibited by this Article XI. Sec. 14.110.100 -- Application of this Article XI to Pre-existin Massage Establishments and Persons Holding Valid Massage Therapist Business Licenses Before Effective Date of This Chapter/One-Year Time Period for Holders of Pre-existing Business Licenses to Meet New Educational Requirements. (a) Except as otherwise provided herein, the provisions of this chapter shall become applicable to Massage Establishments which lawfully existed in the Town prior to the effective date of this chapter, and to persons who held valid Massage Therapist business license issued by the Town prior to the effective date of this chapter, upon the expiration of such preexisting Massage Establislnnent business license and/or Massage Therapist business license and/or pursuant to section 14.110.075. In order to renew such preexisting Massage Establishment business license, the holder of the business license must file an application for a new permit pursuant to section 14.110.025, pay all applicable fees and must demonstrate, to the satisfaction of the Police Cluef, that he/she meets all requirements of this chapter, except that holders of preexisting Massage Establislnnent business license shall have a period of eighteen (18) months from the effective date of this chapter to meet the new educational requirements set forth in sections 14.110.025 and 14.110.30, respectively. SECTION II In the event that any part of this ordinance is held to be invalid, the invalid part or parts shall be severed from the remaining portions which shall remain in full force and effect. Page 18 of 19 SECTION III This ordinance was introduced at a regular meeting of the Town Council of the Town of Los Gatos on September 21, 2009 and adopted by the following vote as an ordinance of the Town of Los Gatos at a regular meeting of the Town Council of the Town of Los Gatos on October 5, 2009. This ordinance takes effect 30 days after it is adopted. COUNCIL MEMBERS: AYES: Joe Pirzynski, Diane McNutt, Steve Rice, Barbara Spector, and Mayor Mike Wasserman NAYS: None ABSENT: None ABSTAIN: None SIGNED: ~ MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST• ~~ i CLE ADMINISTRATOR OF THE TOWN OF LOS GATOS ~SATOS, CA:~,iFORNIA Page 19 of 19