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Staff Report PREPARED BY: Robert Schultz, Town Attorney Reviewed by: Town Manager Assistant Town Manager Finance MEETING DATE: 10/18/2016 ITEM NO: 8 COUNCIL AGENDA REPORT DATE: October 27, 2016 TO: MAYOR AND TOWN COUNCIL FROM: ROBERT SCHULTZ, TOWN ATTORNEY SUBJECT: ADOPT AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AMENDING TOWN CODE CHAPTER 14 ARTICLE XI. - MASSAGE THERAPY ESTABLISHMENTS AND MASSAGE THERAPY PRACTIONERS RECOMMENDATION: Staff recommends that Town Council accept public comment and then move for introduction and first reading of an Ordinance, by title only, amending Chapter 14 Article XI to the Los Gatos Town Code. INTRODUCTION: In 2008, the State signed into law the Massage Therapy Law, creating a statewide system for issuing massage worker permits and shifted government regulation from local governments to the CAMTC. The Massage Therapy law preempted most local land use, zoning and operational regulations relating to massage therapists and practitioners certified by the CAMTC and massage establishments that exclusively employ certified massage therapists and practitioners. Recently, the law changed to allow more local regulation by authorizing the Town to adopt and enforce zoning regulations specific to massage establishments that do not necessarily apply to all other licensed professionals. BACKGROUND: Prior to 2008, California was among a minority of states that did not have state standards concerning the education, training and licensing of massage professionals and the businesses in which they practice. Regulation in this area was left to local governments. In 2008, the Legislature adopted legislation that created the California Massage Therapy Council PAGE 2 MAYOR AND TOWN COUNCIL SUBJECT: ORDINANCE RE MASSAGE REGULATIONS OCTOBER 27, 2016 BACKGROUND (Cont’d): (“CAMTC”), a nonprofit organization responsible for issuing certificates to massage therapists and disciplining them for unlawful acts such as prostitution. In 2009, in response to the passage of the State Massage Therapy Law, the Town made extensive revisions and amendments to the Town Code relating to Massage Therapy and Establishments. In 2013 and 2014, elected officials across California relayed a message to the League of California Cities about one of the challenges facing cities: the inability to regulate the massage industry and the resulting increase of illicit establishments. Towns and Cities worked with their Legislators to craft legislation that would return local authority to cities to regulate massage businesses and give cities the tools to shut down businesses violating local ordinances. In 2015, the State restored the ability of towns and cities to impose local regulations on massage establishments and practitioners as a result of the new provisions of Assembly Bill 1147. This legislation allows local governments to use their regulatory and land use authority, as is the case with other businesses, to ensure the public’s safety, reduce criminal activity, and enforce local standards for the operation of the business of massage therapy. Under AB 1147, cities are able to regulate the business that provides the massage therapy services and the California Massage Therapy Council will be responsible for regulating those individuals who apply or have a certification to provide massage therapy services. Since the provisions of AB 1147 established a sunset provision in 2017, Staff decided not to bring any revisions to the Town Code to the Town Council. In 2016, AB 2194 extended the provisions of AB 1147 until 2021, and made other changes that now require the Town to implement certain requires in the Town Code. Generally, AB 1147 divides responsibility for massage regulation between CAMTC, which regulates the practice of massage and certifies individual massage therapists, and towns, cities and counties, which are free to regulate the business of providing massage through land use and business licensing requirements. AB 1147 has more rigorous certification requirements for new massage professional applicants, and imposes greater statewide regulations on all certified massage therapists, including prohibitions from engaging in sex-related acts, sexually suggestive advertising, or wearing unacceptable attire. CAMTC must deny a certification application for, or revoke the certification of, anyone required to register as a sex offender. Under Assembly Bill 1147, a town or city may not prohibit a CAMTC certified therapist from engaging in massage or using CAMTC recognized massage techniques. The certification of massage therapists is regulated by CAMTC and a town city does not have the authority to revoke a therapist’s certification. AB 1147 does not regulate non-certified massage therapists, so towns and cities are still unrestricted in regulating them. PAGE 3 MAYOR AND TOWN COUNCIL SUBJECT: ORDINANCE RE MASSAGE REGULATIONS OCTOBER 27, 2016 BACKGROUND (Cont’d): AB 1147 restores much of local government’s authority to regulate massage establishments by recognizing various grants of authority to cities and counties to adopt land use and business regulations, including the police power in Article XI, section 7 of the California Constitution. (See new Gov. Code § 51034.) AB 1147 lists specific ways cities may not regulate massage establishments, but cities are otherwise free to regulate these establishments. Under Assembly Bill 1147, a town or city may not define or regulate massage establishments as adult entertainment businesses or otherwise regulate a massage establishment as adult entertainment. A town or city may not require such establishments to post any notice in an area that may be viewed by clients that contains explicit language describing sexual acts or mentions genitalia or specific contraception devices. A town or city may not impose more stringent client draping rules than what the statutes require. Regarding facilities, a town or city may not obligate a massage establishment to have internal physical structures, such as windows looking into massage rooms or walls that do not extend from the floor to the ceiling and a town or city may not prevent a one-person business from locking its external doors. Other than these specific limitations, towns and cities may impose other regulations on massage establishments. DISCUSSION The Town Attorney's Office has drafted an ordinance to amend portions of Chapter 14, Article XI to ensure the future health, safety, and general welfare of the town's citizens. Attachment 1 is a redline of the Town’s current ordinance with the proposed amendments and Attachment 2 is the proposed amended Ordinance. The amended Ordinance ensures CAMTC therapists are regulated to the greatest extent possible by requiring Massage Establishment Licenses. The Massage Establishment Permit applicant must pass a background check, and meet the conditions and requirements of the Ordinance. The Chief of Police would make the final decision on the Massage Establishment Permit. Massage establishment permits would be 12 months in duration unless suspended or revoked earlier based on the grounds listed in the ordinance. The Massage Establishment Permit holders will be responsible for the massage establishment business: any act or omission of anyone providing massage at the establishment’s location, whether as an employee or an independent contractor, which constitutes a violation of the Ordinance, would be deemed an act or omission of the massage establishment. Massage establishments will also have to comply with portions of the Massage Therapy Act relating to display of CAMTC certifications, sexual activity, sexually suggestive advertising, and clothing requirements. The inclusion of these requirements is permitted because it does not conflict with the Massage Therapy Act as provided under AB 1147. The revised Ordinance would require massage establishments to close and massage therapist services to cease by 10:00 PAGE 4 MAYOR AND TOWN COUNCIL SUBJECT: ORDINANCE RE MASSAGE REGULATIONS OCTOBER 27, 2016 DICUSSION (Cont’d): p.m. The Ordinance also includes various minor changes as well as updates to state statutory references. Massage establishments would be required to obtain a police permit after the effective date of the ordinance. Any massage establishment registration previously issued would become void after the effective date of the Ordinance, unless an application for a massage establishment permit is submitted, in which case the registration will continue in effect until a decision is rendered on the application. Owners of massage establishment businesses must also obtain a use permit when required under the zoning ordinance. FISCAL IMPACT This Ordinance involves administrative costs of issuing massage establishment permits, but those costs may be recovered through fees the establishments will have to pay to obtain these permits. A resolution establishing the cost recovery fee for a massage establishment permit will be brought before the Town Council in 2017. Thus, no fiscal impact is expected. ALTERNATIVES 1. Introduce the proposed Ordinance with modifications. 2. Provide further direction to staff pertaining to the proposed Ordinance and continue consideration to a subsequent Town Council meeting. 3. Do not introduce the proposed Ordinance. ENVIRONMENTAL ASSESSMENT: It has been determined that there is no possibility that this project will have a significant impact on the environment; therefore, the project is not subject to the California Environmental Quality Act (Section 15061 (b) (3)). Attachments: 1. Redline of current Ordinance 2. Propose amended Ordinance Page 1 ARTICLE XI. - MASSAGE THERAPY ESTABLISHMENTS AND MASSAGE THERAPY PRACTIONERS Sec. 14.110.014. - Purpose and intent. Sec. 14.110.015. - Definitions. Sec. 14.110.020. - Exemptions. Sec. 14.110.025. - Permit/certification requirements for massage establishments, massage therapists. Sec. 14.110.030. - Educational requirements for massage therapists. Sec. 14.110.035. - Applications for mMassage therapist Establisment pPermits. Sec. 14.110.040. - Grant or denial of application for mMassage therapist Establsihmnet pPermit. Sec. 14.110.045. - Business license. Sec. 14.110.046 - Massage therapist and massage practitioner registration. Sec. 14.110.047 - Notice of employees' status. Sec. 14.110.050. - Operating requirements for massage establishments. Sec. 14.110.055. - Sanitation requirements/condition of premises. Sec. 14.110.060. - Prohibited acts. Sec. 14.110.065. - Out-call massage services. Sec. 14.110.070. - Transfer of mMassage therapist Establsihment permit. Sec. 14.110.075. - Expiration and renewal of mMassage Establsihment therapist pPermit; payment of renewal fee. Sec. 14.110.080. - Suspension and revocation of mMassage therapist Etablsihmnet pPermit. Sec. 14.110.085. - Criminal penalties. Sec. 14.110.090. - Inspection by officials. Sec. 14.110.095. - Massage establishment operated in violation of this article xi deemed a public nuisance. Sec. 14.110.100. - Application of this Article XI to pre-existing 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. Sec. 14.110.014. - Purpose and intent. (a) Purpose. (1) The Town of Los Gatos is authorized to regulate massage establishments pursuant to Government Code Section 51030 et seq., Business and Professions Code Sections 460 and 4600 et seq. and Section 7 of Article XI of the California Constitution. (21) 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. (32) 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 Attachment 1 Page 2 standards and to ensure that persons offering massage shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered. (43) 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. (45) Specifically, the regulations in this Article are intended to reduce or prevent blight, protect and preserve the quality of commercial and residential properties, protect and preserve the quality of life in the Town of Los Gatos, deter criminal activity, enhance enforcement of criminal statutes, and prevent commercial sexual exploitation and human trafficking. (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 Article XI shall control, unless to do so would be inconsistent with the stated purpose of this Article XL. Any massage establishment is further regulated pursuant to Chapter 29 of this Code. (c) Responsibility for enforcement. The primary 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 (2) levels of certification: CMT (Certified Massage Therapist) and CMP (Certified Massage Practitioner). means the California Massage Therapy Council created pursuant to Chapter 10.5 of Division 2 of the California Business and Professions Code. Certified Massage Therapist or CMT means a person who holds a current and valid CAMTC certification as a massage therapist. Certified Massage Practitioner or CMP means a person who holds a current and valid CAMTC certification as a massage practitioner. For compensation means the exchange of massage for money, goods or services. An establishment or person cannot avoid the requirements of this division by offering free massage in conjunction with other services or goods provided for compensation. 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. or with the aid of any mechanical or electrical apparatus or other appliances or devices, with or without the use of oils, creams, tonics, lotions, antiseptics, tanning products, or other similar preparations. Massage shall further include baths, aromatherapy, vapor, shower, electric tub, sponge, hot towels, sauna, Page 3 steam, or any other type of bathing activity where the essential nature of the service involves any method of pressure or friction against, or stimulating the external parts of the human body with the hands or any other parts of the body or devices. Massage Establishment 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 earned 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 tub/sauna establishment, personal fitness training center, spa, gymnasium, athletic facility, health club or office in which massage services are made available to clients. For purposes of this division, the term "massage establishment" shall include, but not be limited to, any establishment providing off-premises massage services as well as any establishment which offers services such as relaxation, hot tub, towel wraps, baths, health treatments, tanning, or any service where the essential nature of the interaction between the employee and the customer involves a massage. Massage Establishment Permit means a written document authorizing the holder to engage in the business of providing massage for compensation. Massage Therapist who performs massage in return for compensation of any type and who has completed a minimum of three hundred (300) or more verifiable hours in a resident course of study from a recognized school on the theory, ethics, history, practice, methods, professio n 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 from a recognized school, that which provides a diploma or certificate of completion upon successful completion of such resident course of study. Massage Therapist trainee means any person who is defined in "Massage Therapist" above, and who has written proof he/she is currently enrolled 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 Off-premises 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. practicing massage for compensation at a location other than at a permitted massage establishment. Operator means any person who operates and is responsible for the day-to-day activities of a massage establishment. Owner " means any individual who has any direct or indirect ownership interest in a 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 Page 4 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 techniques. 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 Section 14.110.025 shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions:: (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 when engaging in such practice within the scope of his or her license.. (b) Persons who hold a current and valid CAMTC state certification and who are practicing consistent with the qualifications and requirements of such certificate. (b) Trainers of any amateur, semi-professional, or professional athlete or athletic team, so long as such persons do not practice massage therapy as their primary occupation at any location where they provide such services in the Town. (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. while engaging in practices within the scope of their licenses. (d) Persons administering massages or health treatments involving massage to other persons who are participating in a recreational or special event such as road races, track meets, triathlons, educational events, or conferences 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 Page 5 (5) The persons providing the massage services are in compliance with all applicable Town Codes and other laws. (e) Somatic practitioners who use no physical touch of any kind at any time in their practice. (f) Enrolled students of a school of massage when they are performing massage within the city as part of a formal supervised internship or training program operated by the school, without compensation other than school credit, on the premises of a massage establishment duly authorized to operate pursuant to the terms of this chapter; and provided that the operator of the massage establishment has first notified the director in writing of the name, residence address, and school of the students and the dates of the trainings. Sec. 14.110.025. - Permit/certification requirements for massage establishments, massage therapists. (a) Massage Establishments. No person shall establish, operate or maintain a Massage Establishment within Town limits without ensuring that each massage practitioner/therapist (whether an employee or independent contractor) working within the establishment has a current 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. (a) No person, firm, association, partnership, corporation or other entity shall have an ownership interest in or operate a massage establishment without first obtaining a Massage Establishment Permit from the Police Chief or his/her designee. (b) Except as provided in Section 14.110.020, no person other than a Certified Massage Therapist or a Certified Massage Practitioner shall provide massage for compensation. (c) Except as provided in Section 14.110.020, no person, firm, association, partnership, corporation or other entity shall employ any person other than a Certified Massage Therapist or Certified Massage Practitioner to provide massage for compensation. 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 Page 6 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 (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 a non-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, biomechanics 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 eighteen (18) months from the effective date of this Article XI, any therapist who does not have the required three hundred (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 enrolled in coursework associated with massage therapy and compliance of the three hundred-hour requirement is expected in a reasonable amount of time. Sec. 14.110.035. - Applications for massage therapist permits. a Massage Establishment Permit. (a) Submission of application. All persons who wish to obtain a Massage Therapis Massage Establishment t pPermit 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 7 (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 I.D. number (if any) and Social Security number and CAMTC certification; (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 and dates of employment; (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 and the dates of employment ; (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 Establishment, 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 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; (132) Whether the applicant had previously applied to the Town for a Massage Therapist Establishment pPermit, the date of the previous application and any other name(s) under which the application was made; (143) 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 acknowledgment from the owner of the property that a Massage Establishment will be located on his/her property; (154) Proof of malpractice insurance in the sum of not less than one hundred thousand dollars ($100,000.00) per massage therapist licensed, or to be licensed, at the Massage Page 8 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; (165) 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; (176) 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 (187) 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. (318) 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 Establishment Ppermit, 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 TherapistEstablishment pPermit, 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 9 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 Establishment. Upon receipt of an application for a new Massage Establishment, 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 Establishment the applicant shall comply with the Town's zoning code. No home occupation permit shall be issued for a massage establishment 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 XL. 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 Establishment pPermit 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 mMassage eEstablishment and/or therapist to be in compliance with Chapter 29 of this Code. (b) Grounds for denial of Massage Therapist Establishment pPermit. The Police Chief shall deny an application for a Massage Establishment, Managing Employee permit or Massage Practitioner pPermit or the renewal thereof 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, owner, operator, or personnel of a Massage Establishment is required to register under the provisions of California Penal Code § 290. (2) The applicant does not have the required educational qualifications, unless the applicant is exempted from these requirements pursuant to subsection 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 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; Page 10 (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 through 11354, 11358 through 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 ten (10) years; or (d) Any offense involving sexual misconduct. any sex-related crime or crime of moral turpitude. (e) For purposes of this section, a plea of "nolo 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, functions or duties of a Massage Therapist or Establishment. (7) The operation of the Massage Establishment at the proposed location would be injurious to the health, safety or welfare of the people of the Town or would violate the Town's zoning, building or fire regulations, or other provisions of law or the Town Code. (8) . The applicant or owner or operator of a massage establishment has been convicted in a court of competent jurisdiction of any offense involving the use of force and violence upon the person of another which constitutes a felony. (9) The applicant or the owner or operator of a massage establishment has previously violated the provisions of this division or of any similar ordinance, law, rule or regulation of the Town or another public agency which regulates the operation of massage establishments or persons providing massage. (10) If an establishment permit or a renewal thereof is approved, the Police Chief may include such restrictions and conditions in the establishment permit as he or she deems reasonable and necessary under the circumstances to ensure compliance with the purposes and intent of this Article. Page 11 (ac) 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. (bd) Appeal of denial of Massage Therapist Establishment pPermit to the Town Manager. Upon the denial of an application for a Massage Therapist Establishment pPermit by the Police Chief, the applicant may appeal to the Town Manager through 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. Sec. 14.110.045. - Business license. It is unlawful for any person, whether an employee or independent contractor of a massage establishment, 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. Section 14.110.046 - Massage therapist and massage practitioner registration. Page 12 Certified Massage Therapists and Certified Massage Practitioners shall provide the Police Chief with a copy of their California Massage Therapy Council certifications, the name and address of their massage school(s), and the name and address of any massage establishment in which they are employed or under contract, during an initial in-person registration with the Police Chief. Certified Massage Therapists and Certified Massage Practitioners shall also provide the Police Chief with a copy of their renewed certifications within 90 days of their renewal and shall notify the Police Chief within 90 days of any start or termination in employment or contract with a massage establishment. Massage establishment owners and operators shall be held liable for any employees or contractors who fail to comply with the requirements of this section. Sec. 14.110.047 - Notice of employees' status. Every massage establishment holding an establishment permit shall notify the Police Chief , in writing, of the name and residence of each employee or contractor providing massage for compensation. Such notification shall occur within five calendar days of the start of the individual's employment or contract with the massage establishment. Sec. 14.110.050. - Operating requirements 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 establishment 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 Establishment pPermit. 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. A copy of the current Massage Establishment Permit shall be displayed in a conspicuous, public place within the massage establishment premises. A copy of each Certified Massage Therapist’s’s and Certified Massage Practitioner's CAMTC certification shall be kept on the premises and available for inspection . (c) Dressing/massage room. Clients of the Massage Establishment shall be furnished with a dressing/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 Establishments 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. Page 13 (e) Alcohol prohibited. No alcoholic beverages may be possessed or consumed on the premises of the Massage Establishment. (f) No condoms. No condoms shall be kept at the Massage Establishment 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 Establishment shall remain fully clothed at all times while on the premises of the Massage Establishment. At a minimum, such clothing shall be made of a non-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. All Certified Massage Therapists and Certified Massage Practitioners shall meet the dress code requirements in California Business and Professions Code section 4609, subdivision (a)(10), and all other employees, contractors, and owners of the massage establishment shall remain fully clothed in clean outer garments while on the premises of the massage establishment. At a minimum such clothing shall be made of non-transparent material and shall cover the entirety of the torso area from the chest to mid-thigh. (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 article 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 be be 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 any 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 Establishment. Said records shall be retained on the premises of the Massage Establishment business office for a period of not less than three (3) years. Page 14 (k) Identification of employees. Certified Massage Therapists and Certified Massage Practitioners shall wear their CAMTC-issued picture identification cards while on the massage establishment premises or otherwise engaged in the business of providing massage for compensation. (l) Devices prohibited. No device, including, but not limited to, an audio or video recording device, shall be used by a massage establishment, Certified Massage Therapist, or Certified Massage Practitioner to monitor the practice of a massage, or any conversation or other sounds in massage rooms without the expressed consent of the client. No device of any kind shall be installed or used which would operate in any way to detect or interfere with law enforcement surveillance or communication equipment. (m) Advertising. No person or massage establishment shall advertise in any manner or form that he, she, or it provides massage for compensation unless the person or massage establishment meets the permit and certification requirements of this division. All advertisements for massage and massage establishments and the services offered therein shall reflect the professional nonsexual nature of the business. No massage establishment granted an establishment permit under this division shall distribute or cause to be distributed any advertising matter that depicts any service is available other than those services authorized by this division. (n) Entry and exit. All massage establishment clients shall enter and exit exclusively through the front door of the massage establishment. The front door shall be the door facing the street or, if no such door exists, the door that is most visible to members of the public passing by the massage establishment. (o) Sex and gender discrimination prohibited. A massage establishment cannot provide services only to persons of a single sex or gender, nor may it refuse to serve any individual based on sex or gender. ( 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 common 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 recept acle. 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 Establishment shall provide doors on all of its dressing rooms and massage rooms. Page 15 Nontransparent 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 Certified Massage therapist, or any other employee or contractor 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 Certified Massage Therapist, Certified Massage Practitioner, or other employee or contractor 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, blanket 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 mMassage therapist Establishment 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 Establishments 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 mMassage therapist Establishment Ppermit. No Massage Establishment 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 Page 16 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. (Ord. No. 2178, § I, 10-5-09) Sec. 14.110.075. - Expiration and renewal of mMassage therapist Establishment pPermit; payment of renewal fee. (a) All Massage TherapistEstablishment pPermits shall expire annually on the date of their issuance, unless revoked sooner by the Police Chief. (b) 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 a non -refundable renewal fee, in the amount established by resolution of the Town Council, at the time of filing his/her application for renewal. (c) 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 subsection 14.110.040(b) exist. The Police Ch ief 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 Establishment pPermit 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 mMassage therapist Establishment pPermit. (a) Grounds for suspension or revocation of Massage Therapis Establishment t pPermit. The Police Chief may suspend for a period of up to nine (9) months or revoke a Massage Therapist Establishment permit, according to procedures set forth in subsection (c) below, if there is probable good 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; Page 17 (2) The permit holder has committed any offense involving lewdness, indecent exposure, prostitution, human trafficking 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; (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 manner 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 forth 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, prostitution, 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. (bc) Procedure for revocation or suspension of Massage Therapist Establsihment 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 revoked. 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 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 Page 18 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 through the procedures set forth in paragraph (4), below. The decision of the Pol ice 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 Town 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 t he 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 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 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) calendar 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 Page 19 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 Chief. 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 X I shall be one thousand dollars ($1,000.00), or a term of imprisonment in the county jail for a period not exceeding six (6) months. 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, Building Official, 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 Establishment from time to time during regular business hours for the purpose of making 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 is 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 manner prohibited by this Article XL ( Sec. 14.110.100. - Application of this Article XI to pre-existing massage establishments and persons holding valid massage therapist business licenses before effective date of this Page 20 chapter/one-year time period for holders of pre-existing business licenses to meet new educational requirements. The provisions of this division shall be applicable to all persons and businesses described herein. Massage establishment permits issued by the Town before November 1, 2016 shall not be renewed. Persons holding such permits must submit a written application for an establishment permit and comply with the establishment requirements set forth in this Chapter and be issued an establishment permit as set forth in this Chapter. 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 Establishment 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 Chief, that he/she meets all requirements of this chapter, except that holders of preexisting Massage Establishment 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. ( Page 1 of 20 ORDINANCE NO. AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AMENDING TOWN CODE CHAPTER 14 ARTICLE XI. - MASSAGE THERAPY ESTABLISHMENTS AND MASSAGE THERAPY PRACTITIONERS WHEREAS, the Town currently regulates the practice of massage and the operation of Massage Establishments for the benefit of the public health, safety and welfare; and WHEREAS, Business and Professions Code section 4600 et seq. (enacted by SB 731 in 2008 and amended by AB 619 in 2011) created a statewide permitting system administered by the California Massage Therapy Council for issuing massage worker permits, thereby preempting local permitting systems and requirements; and WHEREAS, in January 2015, the State of California adopted Assembly Bill 1147 ("AB 1147"), an act to amend Section 460 of, and to add and repeal Chapter 10.5 (commencing with Section 4600) of Division 2 of the Business and Professions Code, and to amend Section 51034 of the Government Code, relating to healing arts. The State law authorizes the Town of Los Gatos to adopt and enforce local ordinances that govern zoning, business licensing, and reasonable health and safety requirements for establishments and businesses of a licensed or certified healing arts professional, including a certified Massage Therapist. The law also made clarifying and conforming changes regarding local regulation of Massage Establishments and businesses; and WHEREAS, the Business and Professions Code continues to allow certain local regulation of Massage Establishments and, to enable the Town of Los Gatos to carry out such local regulation and review of Massage Establishments found in Business and Professions Code section 4600 et seq., the Town must amend its Massage Establishment regulations. NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS FOLLOWS: SECTION I. Los Gatos Town Code Chapter 14 Article XI – Massage Therapy Establishments and Massage Therapy Practitioners is hereby repealed and reenacted to read as follows: ARTICLE XI. - MASSAGE THERAPY ESTABLISHMENTS AND MASSAGE THERAPY PRACTITIONERS Sec. 14.110.014. - Purpose and intent. Sec. 14.110.015. - Definitions. Sec. 14.110.020. - Exemptions. Sec. 14.110.025. - Permit/certification requirements. Sec. 14.110.035. - Applications for Massage Establishment Permit. Attachment 2 Page 2 of 20 Sec. 14.110.040. - Grant or denial of application for Massage Establishment Permit. Sec. 14.110.045. - Business license. Sec. 14.110.046. - Massage Therapist and Massage Practitioner registration. Sec. 14.110.047. - Notice of employees' status. Sec. 14.110.050. - Operating requirements for Massage Establishments. Sec. 14.110.055. - Sanitation requirements/condition of premises. Sec. 14.110.060. - Prohibited acts. Sec. 14.110.065. - Out-call massage services. Sec. 14.110.070. - Transfer of Massage Establishment Permit. Sec. 14.110.075. - Expiration and renewal of Massage Establishment Permit; payment of renewal fee. Sec. 14.110.080. - Suspension and revocation of Massage Establishment Permit. Sec. 14.110.085. - Criminal penalties. Sec. 14.110.090. - Inspection by officials. Sec. 14.110.095. - Massage Establishment operated in violation of this Article XI deemed a public nuisance. Sec. 14.110.100. - Application of this Article XI to pre-existing Massage Establishments Sec. 14.110.014. - Purpose and intent. (a) Purpose. (1) The Town of Los Gatos is authorized to regulate Massage Establishments pursuant to Government Code Section 51030 et seq., Business and Professions Code Sections 460 and 4600 et seq. and Section 7 of Article XI of the California Constitution. (2) 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. (3) 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 possess the minimum qualifications necessary to operate such businesses and to perform such services offered. (4) 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. (5) Specifically, the regulations in this Article are intended to reduce or prevent blight, protect and preserve the quality of commercial and residential properties, protect and preserve the quality of life in the Town of Los Gatos, deter criminal activity, enhance enforcement of criminal statutes, and prevent commercial sexual exploitation and human trafficking. Page 3 of 20 (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 Article 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 primary 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) means the California Massage Therapy Council created pursuant to Chapter 10.5 of Division 2 of the California Business and Professions Code. Certified Massage Therapist or CMT means a person who holds a current and valid CAMTC certification as a Massage Therapist. Certified Massage Practitioner or CMP means a person who holds a current and valid CAMTC certification as a Massage Practitioner. For compensation means the exchange of massage for money, goods or services. An establishment or person cannot avoid the requirements of this Artilce by offering free massage in conjunction with other services or goods provided for compensation. 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 with the aid of any mechanical or electrical apparatus or other appliances or devices, with or without the use of oils, creams, tonics, lotions, antiseptics, tanning products, or other similar preparations. Massage shall further include baths, aromatherapy, vapor, shower, electric tub, sponge, hot towels, sauna, steam, or any other type of bathing activity where the essential nature of the service involves any method of pressure or friction against, or stimulating the external parts of the human body with the hands or any other parts of the body or devices. Massage Establishment 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 earned 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 tub/sauna establishment, personal fitness training center, spa, gymnasium, athletic facility, health club or office in which massage services are made available to clients. For purposes of this Article, the term "Massage Establishment" shall include, but not be limited to, any establishment providing Page 4 of 20 off-premises massage services as well as any establishment which offers services such as relaxation, hot tub, towel wraps, baths, health treatments, tanning, or any service where the essential nature of the interaction between the employee and the customer involves a massage. Massage Establishment Permit means a written document authorizing the holder to engage in the business of providing massage for compensation. Off-premises massage means practicing massage for compensation at a location other than at a permitted Massage Establishment. Operator means any person who operates and is responsible for the day-to-day activities of a Massage Establishment. Owner means any individual who has any direct or indirect ownership interest in a 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. 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 Section 14.110.025 shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions: (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 when engaging in such practice within the scope of his or her license. (b) Trainers of any amateur, semi-professional, or professional athlete or athletic team, so long as such persons do not practice massage therapy as their primary occupation at any location where they provide such services in the Town. (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 while engaging in practices within the scope of their licenses. (d) Persons administering massages or health treatments involving massage to other persons who are participating in a recreational or special event such as road races, track meets, Page 5 of 20 triathlons, educational events, or conferences that has been approved by the Town, provided that all of 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. (e) Somatic practitioners who use no physical touch of any kind at any time in their practice. (f) Enrolled students of a school of massage when they are performing massage within the city as part of a formal supervised internship or training program operated by the school, without compensation other than school credit, on the premises of a Massage Establishment duly authorized to operate pursuant to the terms of this chapter; and provided that the operator of the Massage Establishment has first notified the director in writing of the name, residence address, and school of the students and the dates of the trainings. Sec. 14.110.025. - Permit/certification requirements. (a) No person, firm, association, partnership, corporation or other entity shall have an ownership interest in or operate a Massage Establishment without first obtaining a Massage Establishment Permit from the Police Chief or his/her designee. (b) Except as provided in Section 14.110.020, no person other than a Certified Massage Therapist or a Certified Massage Practitioner shall provide massage for compensation. (c) Except as provided in Section 14.110.020, no person, firm, association, partnership, corporation or other entity shall employ any person other than a Certified Massage Therapist or Certified Massage Practitioner to provide massage for compensation. Sec. 14.110.035. - Applications for a Massage Establishment Permit. (a) Submission of application. All persons who wish to obtain a Massage Establishment 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: Page 6 of 20 (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; (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 I.D. number (if any) and Social Security number and CAMTC certification; (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 and dates of employment; (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 and the dates of employment; (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 Establishment, 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 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 had previously applied to the Town for a Massage Establishment Permit, the date of the previous application and any other name(s) under which the application was made; Page 7 of 20 (13) 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 acknowledgment from the owner of the property that a Massage Establishment will be located on his/her property; (14) Proof of malpractice insurance in the sum 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; (15) 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; (16) 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 (17) 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. (18) 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. (b) Payment of permit fees. At the time of filing an original application for a Massage Establishment Permit, applicants shall pay permit fees (as applicable) in an amount established by a resolution of the Town Council. All fees shall be non-refundable. (c) Processing of application and investigation. Upon receipt of an application for a Massage Establishment 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. 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 Page 8 of 20 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 Establishment. Upon receipt of an application for a new Massage Establishment, 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 Establishment the applicant shall comply with the Town's Zoning Code. No Home Occupation Permit shall be issued for a Massage Establishment 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 XL. 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 Establishment 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 Establishment to be in compliance with Chapter 29 of this Code. (b) Grounds for denial of Massage Establishment Permit. The Police Chief shall deny an application for a Massage Establishment Permit or the renewal thereof 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, owner, operator, or personnel of a Massage Establishment is required to register under the provisions of California Penal Code § 290. (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 an y 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; Page 9 of 20 (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 through 11354, 11358 through 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 ten (10) years; (d) Any offense involving any sex-related crime or crime of moral turpitude. (e) For purposes of this section, a plea of "nolo 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, functions or duties of a Massage Therapist or Establishment. (7) The operation of the Massage Establishment at the proposed location would be injurious to the health, safety or welfare of the people of the Town or would violate the Town's zoning, building or fire regulations, or other provisions of law or the Town Code. (8) The applicant or owner or operator of a Massage Establishment has been convicted in a court of competent jurisdiction of any offense involving the use of force and violence upon the person of another which constitutes a felony. (9) The applicant or the owner or operator of a Massage Establishment has previously violated the provisions of this Article or of any similar ordinance, law, rule or regulation of the Town or another public agency which regulates the operation of Massage Establishments or persons providing massage. (10) If an Establishment Permit or a renewal thereof is approved, the Police Chief may include such restrictions and conditions in the Establishment Permit as he or she deems reasonable and necessary under the circumstances to ensure compliance with the purposes and intent of this Article. Page 10 of 20 (c) 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. (d) Appeal of denial of Massage Establishment Permit to the Town Manager. Upon the denial of an application for a Massage Establishment Permit by the Police Chief, the applicant may appeal to the Town Manager through 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. Sec. 14.110.045. - Business license. It is unlawful for any person, whether an employee or independent contractor of a Massage Establishment, to open or operate a Massage Establishment or self-employment of massage therapy without obtaining and maintaining in effect a Town business license an d paying a business license tax. Page 11 of 20 Section 14.110.046 - Massage Therapist and Massage Practitioner registration. Certified Massage Therapists and Certified Massage Practitioners shall provide the Police Chief with a copy of their California Massage Therap y Council certifications, the name and address of their massage school(s), and the name and address of any Massage Establishment in which they are employed or under contract, during an initial in -person registration with the Police Chief. Certified Massage Therapists and Certified Massage Practitioners shall also provide the Police Chief with a copy of their renewed certifications within 90 days of their renewal and shall notify the Police Chief within 90 days of any start or termination in employment or contract with a Massage Establishment. Massage Establishment owners and operators shall be held liable for any employees or contractors who fail to comply with the requirements of this section. Sec. 14.110.047 - Notice of employees' status. Every Massage Establishment holding an Establishment Permit shall notify the Police Chief, in writing, of the name and residence of each employee or contractor providing massage for compensation. Such notification shall occur within five calendar days of the start of the individual's employment or contract with the Massage Establishment. Sec. 14.110.050. - Operating requirements 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 establishment 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 Establishment Permit. A copy of the current Massage Establishment Permit shall be displayed in a conspicuous, public place within the Massage Establishment premises. A copy of each Certified Massage Therapist’s and Certified Massage Practitioner's CAMTC certification shall be kept on the premises and available for inspection (c) Dressing/massage room. Clients of the Massage Establishment shall be furnished with a dressing/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 Establishments 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 Establishment. Page 12 of 20 (f) No condoms. No condoms shall be kept at the Massage Establishment 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. All Certified Massage Therapists and Certified Massage Practitioners shall meet the dress code requirements in California Business and Professions Code section 4609, subdivision (a),(10), and all other employees, contractors, and owners of the Massage Establishment shall remain fully clothed in clean outer garments while on the premises of the Massage Establishment. At a minimum such clothing shall be made of non-transparent material and shall cover the entirety of the torso area from the chest to mid-thigh. (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 article 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 be 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 person, 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 any 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 Establishment. Said records shall be retained on the premises of the Massage Establishment business office for a period of not less than three (3) years. (k) Identification of employees. Certified Massage Therapists and Certified Massage Practitioners shall wear their CAMTC-issued picture identification cards while on the Massage Establishment premises or otherwise engaged in the business of providing massage for compensation. (l) Devices prohibited. No device, including, but not limited to, an audio or video recording device, shall be used by a Massage Establishment, Certified Massage Therapist, or Certified Massage Practitioner to monitor the practice of a massage, or any conversation or other Page 13 of 20 sounds in massage rooms without the expressed consent of the client. No device of any kind shall be installed or used which would operate in any way to detect or interfere with law enforcement surveillance or communication equipment. (m) Advertising. No person or Massage Establishment shall advertise in any manner or form that he, she, or it provides massage for compensation unless the person or Massage Establishment meets the permit and certification requirements of this Article. All advertisements for massage and Massage Establishments and the services offered therein shall reflect the professional nonsexual nature of the business. No Massage Establishment granted an Establishment Permit under this Article shall distribute or cause to be distributed any advertising matter that depicts any service is available other than those services authorized by this Article. (n) Entry and exit. All Massage Establishment clients shall enter and exit exclusively through the front door of the Massage Establishment. The front door shall be the door facing the street or, if no such door exists, the door that is most visible to members of the public passing by the Massage Establishment. (o) Sex and gender discrimination prohibited. A Massage Establishment cannot provide services only to persons of a single sex or gender, nor may it refuse to serve any individual based on sex or gender. 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 common 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 Establishment shall provide doors on all of its dressing rooms and massage rooms. Nontransparent 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. Page 14 of 20 (a) Touching of sexual and genital parts of client during massage. No Certified Massage therapist, or any other employee or contractor 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 Certified Massage Therapist, Certified Massage Practitioner, or other employee or contractor 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, blanket 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 Establishment 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 Establishments 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 Establishment Permit. No Massage Establishment 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. Sec. 14.110.075. - Expiration and renewal of Massage Establishment Permit; payment of renewal fee. (a) All Massage Establishment Permits shall expire annually on the date of their issuance, unless revoked sooner by the Police Chief. (b) 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 Page 15 of 20 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 a non-refundable renewal fee, in the amount established by resolution of the Town Council, at the time of filing his/her application for renewal. (c) 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 subsection 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). (d) If the holder of a Massage Establishment 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 Establishment Permit. (a) Grounds for suspension or revocation of Massage Establishment Permit. The Police Chief may suspend for a period of up to nine (9) months or revoke a Massage Establishment Permit, according to procedures set forth in subsection (c) below, if there is good 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 committed any offense involving lewdness, indecent exposure, prostitution, human trafficking 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; (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 manner which poses a danger to the health and safety of clients and/or the public, or without due regard for proper sanitation or hygiene. Page 16 of 20 (b) Procedure for revocation or suspension of Massage Establishment Permits. (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 Establishment 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 revoked. 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 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 through 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 Town 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 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 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 Page 17 of 20 (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 ar e relevant to the grounds for the appeal, as stated in the request for an appeal hearing. Within ten (10) calendar 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 Establishment 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 permit, the permit shall immediately be surrendered to the Police Chief. 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 ($1,000.00), or a term of imprisonment in the county jail for a period not exceeding six (6) months. 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, Building Official, 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 Establishment from time to time during regular business hours for the purpose of making reasonable inspections to observe and enforce compliance with applicable regulations, laws, codes and the provisions of this Article XL. Page 18 of 20 Sec. 14.110.095. - Massage Establishment operated in violation of this Article is 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 manner prohibited by this Article XL Sec. 14.110.100. - Application of this Article XI to pre-existing Massage Establishments. The provisions of this Article shall be applicable to all persons and businesses described herein. Massage Establishment Permits issued by the Town before November 1, 2016 shall not be renewed. Persons holding such permits must submit a written application for an Establishment Permit and comply with the establishment requirements set forth in this Chapter and be issued an Establishment Permit as set forth in this Chapter. SECTION II The Town Council finds and determines that the adoption of this Ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) per CEQA Guidelines under the General Rule (Section 15061(b)(3)), which sets forth that the CEQA applies only to projects which have the potential for causing a significant effect on the environment. It can be seen with certainty that the proposed Town Code text amendments will have no significant negative effect on the environment. SECTION III If any provision of this Ordinance or the application thereof to any person or circumstances is held to be invalid, such invalidity shall not affect other provisions or applications of the Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The Town Council hereby declares that it would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the ordinance be enforced. SECTION IV Except as expressly modified in this Ordinance, all other sections set forth in the Los Gatos Town Code shall remain unchanged and shall be in full force and effect. SECTION V This Ordinance shall take effect thirty (30) days after its adoption. In lieu of publication of the full text of the ordinance within fifteen (15) days after its passage, a summary of the Page 19 of 20 ordinance may be published at least five (5) days prior to and fifteen (15) days after adoption by the Town Council and a certified copy shall be posted in the office of the Town Clerk, pursuant to GC 36933(c),(1). SECTION VI This Ordinance was introduced at a regular meeting of the Town Council of the Town of Los Gatos on November 1, 2016, and adopted by the following vote as an ordinance of the Town of Los Gatos at a meeting of the Town Council of the Town of Los Gatos on November 15, 2016. COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK ADMINISTRATOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA Page 20 of 20 ENDNOTES