HomeMy WebLinkAboutCC ORD 2019-2454 Police Regulated Business Regulations and Massage EstablishmentsORDINANCE NO. 2019 — 2454
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY
ADOPTED PURSUANT TO GOVERNMENT CODE SECTIONS 36931 AND 36937
AS AN URGENCY MEASURE TO TAKE EFFECT IMMEDIATELY, AMENDING
NATIONAL CITY MUNICIPAL CODE CHAPTERS 10.70 AND 10.79 OF TITLE 10
(PUBLIC PEACE, MORALS, AND SAFETY) RELATED TO POLICE REGULATED
BUSINESS REGULATIONS AND MASSAGE ESTABLISHMENTS
WHEREAS, pursuant to the terms and provisions of the Government Code of the
State of California, proceedings were duly initiated for the amendment of the National City
Municipal Code; and
WHEREAS, the permitting, regulation, and zoning provisions pertaining to
massage establishments within the City of National City are governed by Municipal Code
Chapters 10.70 (Police Regulated Business Regulations), 10.79 (Massage Establishments),
and 18.30 (Adult Oriented Businesses); and
WHEREAS, the City is authorized to regulate massage establishments pursuant
to Article XI, Section 7 of the California Constitution, as well as by state law, including Section
4600, et seq., of the California Business and Professions Code, and Section 51030, et seq., of
the California Government Code; and
WHEREAS, Section 4600, et seq., of the California Business and Professions
Code, commonly known as the Massage Therapy Act (the "Act"), creates the California
Massage Therapy Council, contains extensive provisions pertaining to the licensing and
regulation of individuals engaged in the practice of massage, and while it states that a city may
enact an ordinance which provides for the licensing of the business of massage, it further states
that no city shall enact or enforce any ordinance that conflicts with the Act or with Section 51034
of the California Government Code, thus creating a partially preemptive effect of State law upon
municipal regulation of massage establishments; and
WHEREAS, the Massage Therapy Act was enacted as urgency legislation by the
State Legislature in January, 2009, and certain provisions of the Act were amended in 2014 and
2016, certain of which amendments were inconsistent with the original version of the Act, and
the latest of which amendments was effective January 1, 2017; and
WHEREAS, Section 51034 of the Government Code was amended by the State
Legislature in 2016, effective January 1, 2017, creating inconsistencies between the prohibitory
provisions of that section and certain current provisions of the National City Municipal Code,
including the following:
• Section 51034(c)(2) prohibits a city from defining a Massage Establishment as an
"adult business", and regulating a massage establishment as an adult
entertainment.
• Section 51034(c)(4) prohibits a city from requiring a massage establishment to
have a shower or bath.
• Section 51034(c)(4) prohibits a city from requiring a massage establishment to
have a shower or bath.
• Section 51034(c)(8) prohibits a city from imposing a requirement that a person
certified under the Massage Therapy Act undergo a criminal background check or
submit fingerprints to obtain a massage permit or license.
• Section 51034(c)(10) prohibits a city from imposing a dress code requirement on a
person certified pursuant to the Massage Therapy Act in excess of those already
imposed by the Act.
and
WHEREAS, at a regular public hearing held on March 7, 2017, the City Council
adopted Ordinance No. 2017-2433 as an urgency interim ordinance, enacting a moratorium for
45 days prohibiting the issuance of massage technician permits and prohibiting new massage
establishments from locating within the City finding an immediate threat to the public health,
safety, and welfare of the city and its residents resulting from the absence of a local ordinance
that follows state mandates and prohibitions relating to massage establishments and
technicians, and that the location of such establishments, and the issuance of permits and other
entitlements for such establishments, would result in a threat to the public health, safety, and
welfare if the City's massage regulatory ordinances were to be found invalid; and
WHEREAS, the City Council found it necessary and appropriate to review and
consider the provisions of the legislation pertaining to massage establishments and technicians
enacted over recent years by the State Legislature; and
WHEREAS, the City Council found that a valid ordinance regulating massage
establishments and massage technicians is necessary to protect the public health, safety, and
welfare, in that such an ordinance will ensure that to the greatest extent possible, massage
businesses will be conducted in a clean and sanitary manner, and in such a way that the
operation of such businesses does not involve prostitution and lewd conduct; and
WHEREAS, the City Council subsequently extended the moratorium for 10
months and 15 days and then for one year pursuant to California Government Code section
65858;
WHEREAS, the moratorium is set to expire on or about February 7, 2019; and
WHEREAS, in compliance with State law and as directed by City Council, City
staff amended Title 10 (Public Peace, Morals, and Safety), Chapters 10.70 and 10.79 pertaining
to Police Regulated Business Regulations and Massage Establishments; and
WHEREAS, on October 2, 2018, the City Council approved Resolution No. 2018-
173, adopting an updated User Fee Schedule which includes fees related to a required police
permit for massage establishments; and
Ordinance No. 2019 — 2454 Page 2 of 19 Amending NCMC 10.70 & 10.79
January 22, 2019 Police Regulated Businesses
and Massage Establishments
WHEREAS, the City Council finds that there is a current and immediate threat to
the public health, safety, and welfare of the city and its residents resulting from the absence of a
local ordinance that follows state mandates and prohibitions relating to massage establishments
and technicians, and that the location of such establishments, and the issuance of permits and
other entitlements for such establishments, would result in a threat to the public health, safety,
and welfare if the City's massage regulatory ordinances were to be found invalid; and
WHEREAS, the City Council finds it essential to protect the health, safety, and
welfare of the citizens of the City of National City to enact an urgency ordinance consistent with
State law, to allow legitimate massage establishments to do business in the City while also
protecting the community from illegitimate businesses.
NOW, THEREFORE, the City Council of the City of National City does hereby
ordain as follows:
Section 1. This urgency ordinance shall take effect immediately after its passage,
and before the expiration of fifteen (15) days after its passage a summary or the ordinance in its
entirety shall be published, with the names of the members voting for and against the same,
once in a local newspaper of general circulation in the City of National City, State of California.
Section 2. The temporary moratorium adopted on March 7, 2017 by City Council
Ordinance No. 2017-2433, and extended by Ordinance Numbers 2017-35 on April 18, 2017 and
2018-2445 on February 6, 2018, is hereby terminated, effective immediately upon adoption of
this Urgency Ordinance.
Section 3. This Ordinance is adopted as an urgency ordinance necessary for the
immediate preservation of the public health, safety, and welfare within the meaning of section
36937 of the Government Code, and shall take effect immediately based on the following
findings:
(a) The City Council finds that there is a current and immediate threat to the public
health, safety, and welfare of the city and its residents resulting from the absence of a local
ordinance that follows state mandates and prohibitions relating to massage establishments and
technicians, and that the location of such establishments, and the issuance of permits and other
entitlements for such establishments, would result in a threat to the public health, safety, and
welfare if the City's massage regulatory ordinances were to be found invalid; and
(b) The City Council finds it essential to protect the health, safety, and welfare of the
citizens of the City of National City to enact an urgency ordinance consistent with State law, to
allow legitimate massage establishments to do business in the City while also protecting the
community from illegitimate businesses.
Section 4. If any portion of this Ordinance is found to be invalid, it is the intention of
the City Council that the remaining valid provisions of the Ordinance be severed from the invalid
provisions and remain in full force and effect.
Ordinance No. 2019 — 2454 Page 3 of 19
January 22, 2019
Amending NCMC 10.70 & 10.79
Police Regulated Businesses
and Massage Establishments
Section 5. All protests, if any, against said amendment to the Municipal Code and
each of them be and hereby are denied and overruled.
Section 6. That Chapter 10.70 of the National City Municipal Code is amended to
read as follows:
CHAPTER 10.70
POLICE REGULATED BUSINESS REGULATIONS
Sections:
10.70.010 Proposed and intent — Permit required.
10.70.020 Definitions.
10.70.030 Applications.
10.70.040 Investigation.
10.70.050 Permit issuance or denial.
10.70.060 Notice of Decision.
10.70.070 Appeal.
10.70.080 Suspension and revocation.
10.70.090 Posting or exhibiting.
10.70.100 Inspection of premises.
10.70.110 Duration.
10.70.120 Transfer of permit.
10.70.130 Transition provisions.
10.70.140 Notice of changes.
10.70.150 Public Nuisance.
10.70.160 Violations and regulatory enforcement.
10.70.170 Severability.
10.70.010 Purpose and intent — Permit required.
A. It is the purpose and intent of the city council to establish procedures for permit
issuance and regulation of certain businesses and activities as police regulated for the
protection of the public health, safety, and welfare. Businesses identified in this Division X
(Chapters 10.70 through 10.79) have a higher degree of potential for one or more types of illicit
activity - prostitution, disorderly conduct, gambling, fraudulent practices, or the concealment or
facilitation of transfers of stolen property. Therefore, regulation of the operations of these
establishments is appropriate to protect legitimate business practice and the public health,
safety and welfare.
B. A business, activity or a performer or technician which is identified in Chapters
10.71 through 10.79 is designated a "regulated business," "regulated activity," "regulated
performer" or "regulated technician," as the case may be, and the specific regulations applicable
to their conduct are set out in Chapters 10.71 through 10.79. The procedures set out in this
Chapter 10.70 shall uniformly govern the administration and appeals process regarding the
issuance, denial, suspension, or revocation of any permit required to operate as a regulated
business or activity or as a regulated performer or technician pursuant to Chapters 10.71
through 10.79.
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January 22, 2019 Police Regulated Businesses
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C. The issuance of a permit pursuant to this chapter does not excuse a regulated
business, activity, performer, or technician from complying with any other revenue or regulatory
requirement of this code or state law. A separate permit shall be required for each type of
activity regulated by Chapters 10.71 through 10.79, unless otherwise provided. The issuance of
a certificate or permit under other provisions of this code does not excuse compliance with or
create a defense to any violation of the requirements of this chapter or Chapters 10.71 through
10.79, as applicable, or any other provisions of law or ordinance, including conditional use
permits required under Title 8.
D. It is unlawful for any person to operate a business or activity or perform or
practice as a performer or technician regulated by this chapter and Chapters 10.71 through
10.79, as applicable, without a valid permit issued by the chief of police or designee, or to
operate, perform or practice while the permit is suspended or revoked. Each day a violation of
this section exists constitutes a separate misdemeanor.
10.70.020 Definitions. For purposes of Chapters 10.70 through 10.79, the following
definitions shall apply:
A. "Person" means and includes a natural person, a partnership, joint venture or a
corporation.
B. "Operator" means any person who supervises, manages, directs, organizes,
controls, or in any other way is responsible for or in charge of the daily operation, conduct or
activities of the regulated business or activity.
C. "Owner" means any person or entity having an ownership interest in the
establishment.
D. "Responsible person" means any person who is an owner, operator, or manager,
and includes any employee or agent in apparent charge of the premises for which the
application is made or required or a permit is issued.
E. "Permit" means a permit issued by or under the authority of the chief of police or
designee that authorizes activity regulated under Chapters 10.71 through 10.79.
F. "Permitee" means an owner to whom a permit issued by or under the authority of
the chief of police or designee that authorizes activity regulated under Chapters 10.71 and
10.79.
G. "Applicant" means the natural person(s) who complete and sign an application
pursuant to this Chapter.
10.70.030 Applications.
A. Any person required to obtain a permit pursuant to Chapters 10.71 through 10.79
shall file a written application with the chief of police or designee on a City -approved form, and
pay the non-refundable fee set forth in the National City fee schedule, to recoup all investigative
costs. The applicant shall provide proof of payment of any regulatory fees imposed by the state
of California or county of San Diego contemporaneously with the filing. Written application forms
prepared by the chief of police or designee may require the applicant to be photographed, finger
printed and to provide, in addition to the information listed below, such other information as is
reasonably necessary to carry out the purposes of this chapter. The application form shall be
approved as to form by the city attorney. For massage establishments, the application shall be
completed and signed by the owner of the proposed massage establishment, if a sole
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proprietorship; one general partner, if the owner is a partnership; or two officers, if the owner is
a corporation.
B. An applicant for a permit shall submit the following information:
1. The full name of the business, including the name under which the
business will be conducted;
2. The address where the business is to be conducted;
3. The applicant's full, true name, and any other names used;
4. The applicant's date of birth;
5. The applicant's present residential address and telephone number;
6. The previous addresses of the applicant for the three years immediately
prior to the date of the application and the dates of residence at each;
7. Applicant's height, weight, color of eyes and hair;
8. Three recent portrait photographs at least two inches by two inches taken
within the preceding six months, which accurately depict the current appearance of the
applicant;
9. The applicant's driver's license and/or identification card issued by a state
or federal governmental agency, or other photographic identification bearing a bona -fide seal of
a foreign government;
10. If the owner is a corporation, domestic stock, domestic non-profit,
qualified foreign corporation, limited liability company, general partnership, or limited
partnership, the application shall include the following:
a. A business entity status report issued by the California Secretary
of State;
b. Organizational documents for the business entity including but not
limited to a copy of the Fictitious Name Statement and/or Articles of Incorporation;
c. Full name, date of birth, residential address, and business
address for each officer and director;
d. the name, date of birth, and residence addresses of the
responsible employee(s) to be principally in charge of the day-to-day operations of the
establishment.
e. The full name of the owner, including any DBAs.
11. The tax identification number for the business;
12. The name, address, email address, and telephone number of the real
property owner where the business will be operated, and a copy of the lease or rental
agreement, if applicable;
13. The business license and permit history of the applicant, including
whether the applicant when previously operating in this or another city or state under a license
or permit, has had that license or permit suspended or revoked, the reason therefore, and the
business activity or occupation subsequent to the suspension or revocation;
14. For massage establishment businesses regulated under Chapter 10.79, a
copy of the massage practitioner certificate issued by the California Massage Therapy Council
pursuant to Chapter 10.5 of the California Business and Professions Code for each owner who
has been issued a certificate, or a statement that such a certificate has not been issued or has
been previously revoked or cancelled with information regarding such revocation or cancelation;
15. For massage establishment businesses regulated under Chapter 10.79, a
list of all persons who will administer massage, including but not limited to employees and
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January 22, 2019
Amending NCMC 10.70 & 10.79
Police Regulated Businesses
and Massage Establishments
independent contractors. Such list shall include the full true name and any other names used,
date of birth, copy of their driver's license or any other photo identification card issued by a
State or Federal agency, and a copy of the valid massage practitioner certificate issued by the
California Massage Therapy Council pursuant to Chapter 10.5 of the California Business and
Professions Code;
16. For massage establishment businesses regulated under Chapter 10.79,
all services must be described on the application for the permit;
17. Business, occupation, or employment history of the applicant for the three
years immediately preceding the date of the application;
18. A list, broken down for each applicant, each responsible employee(s) to
be principally in charge of the day-to-day operations of the establishment, and all partners if a
partnership, or all officers and directors if a corporation, of all criminal convictions, including
pleas of nolo contender, within the preceding five years, including those dismissed or expunged
pursuant to Penal Code section 1203.4, but excluding minor traffic violations, and the date and
place of each such conviction, as well as a full explanation of the circumstances;
19. A complete set of fingerprints taken for each owner if a sole
proprietorship, or each natural person, including the owner and operator or person to be
principally in charge of the day-to-day operations of the establishment; unless in the case of
massage establishment businesses, they hold a valid massage practitioner certificate issued by
the California Massage Therapy Council pursuant to Chapter 10.5 of the California Business
and Professions Code;
20. A signed statement authorizing the City, through its officers, agents, and
employees, to conduct a background check of the applicant, owners(s), and natural persons to
be principally in charge of the day-to-day operations to seek information and conduct an
investigation into the truthfulness of the statements set forth in the application and to ensure
continual compliance with all applicable provisions of the law;
21. A signed acknowledgment that the owner(s) shall be responsible for the
conduct of all employees or independent contractors working on the premises of the business
and acknowledging that failure to comply with the provisions of this Chapter or any local, state
or federal law and, for massage establishment businesses regulated under Chapter 10.79,
failure to comply with California Business and Professions Code section 4600 et seq., may
result in the suspension, revocation, or denial of the permit;
22. An acknowledgement that the applicant consents to periodic inspection of
the regulated premises or activity, and that revocation of the permit may occur for any
unjustified refusal to allow the same;
23. An acknowledgement that the applicant has received a copy of Chapter
10.70 and any applicable chapter from Chapters 10.71 through 10.79 which regulate the
business or activity of the applicant; and
24. A signed statement by the applicant certifying under penalty of perjury
that all information in the application is true and correct, and acknowledging that failure to be
truthful may result in denial of the application.
10.70.040 Investigation. The chief of police or designee, upon receipt of a written
application for a permit and payment of the necessary fees shall promptly conduct an
appropriate investigation to determine whether a permit should be issued in accordance with the
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January 22, 2019 Police Regulated Businesses
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provisions of this chapter. The chief of police or designee shall consider any relevant factual
material relating to such application.
10.70.050 Permit issuance or denial.
A. Issuance. The chief of police or designee may deny a permit application, based
upon investigation and substantial evidence, if he or she finds one or more of any of the
following:
1. That the operation or the premises of the activity, as proposed by the
applicant, would violate any applicable laws, including but not limited to the city's fire, building,
zoning and health regulations; or
2. That the applicant, any other person who will be directly engaged in the
management and operation of the regulated business or activity, or an applicant who is to
participate or perform services as a regulated technician or performer:
a. Has been convicted in any court of competent jurisdiction by a
final judgment of any misdemeanor or felony, within the five years preceding the date of
application, which rationally and reasonably relates to the conduct of the regulated activity; or
b. Has allowed acts to occur in any business operations for the
preceding five years which would violate those sections of the Penal Code listed in Section
10.70.050A.2.d, or any provision of this Chapter or Chapter 10.79, irrespective of a conviction
or acquittal; or
c. Has had a permit to operate a business that is or would be
regulated pursuant to Chapters 10.70 through 10.79 suspended or revoked in any jurisdiction,
within the preceding five years; or
d. Within the five years immediately preceding the date of the filing of
the application, has been convicted in a court of competent jurisdiction of any of the following
offenses:
(1) An offense that requires registration under California Penal
Code Section 290; or
(2) An offense which is a violation of Sections 311 through
311.7, 313.1, 314, 315, 316, 318 or 647(a), 647(b), 647(d), 647(h), 653.22, 653.23 or 290 of
the California Penal Code; or
(3) An offense that is a reduction from any offense listed in
Section 10.70.050A.2.d. (1) or (2) to some other offense under the Penal Code which would
not require registration, pursuant to a plea of guilty negotiated prior to trial; or
(4) Any misdemeanor or felony involving theft of property; or
3. That the applicant has made any false, misleading or fraudulent material
statement of fact in the permit application, or any other related document required by the city in
connection with the application; or
4. The applicant has not complied with the provisions of this Chapter and
Chapter 10.79; or
5. For establishments regulated by Chapter 10.79, the applicant proposes to
locate the massage establishment in the same building as a massage establishment that has
surrendered its permit or had its permit revoked within 5 years of the application date because a
person engaged in any criminal conduct and/or violation of this Chapter or Chapter 10.79 while
on the premises of the former massage establishment; or
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January 22, 2019
Amending NCMC 10.70 & 10.79
Police Regulated Businesses
and Massage Establishments
6. That the application is incomplete and the required information or
documents were not submitted within 20 days of a request for the information or documents.
B. Timeliness and Conditional Issuance of Permit. Upon receipt of a properly
completed application, the chief of police or designee shall either approve or deny the
application within thirty days. Failure to take action on a permit application within thirty days
shall not result in an automatic approval. If the chief of police or designee is awaiting
investigation results from another governmental agency within those thirty days, the chief of
police or designee shall issue a revocable conditional permit on the thirtieth day if a local
records check fails to disclose any disqualifying information and the operation would otherwise
be in compliance with all other applicable laws and regulations; except that a revocable
conditional permit shall not be issued to an escort or massage technician or operator until it
affirmatively appears that there is no disqualifying information, in order to avoid the potential for
physical harm to a potential patron pending final action. Any revocable conditional permit shall
be revoked if further investigation discloses the existence of a disqualifying factor under this
Section 10.70.050.
C. An applicant whose application is denied based on subsection (A)(1) through
(A)(5) of this section is not eligible to reapply for five years after notice of denial. An applicant
whose application is denied for failure to comply with subsection (A)(6) is not eligible to reapply
for 180 days after notice of denial.
D. Permits must be exercised within one year of issuance or shall be deemed
abandoned.
E. A permit is deemed abandoned if the establishment which has exercised its
permit ceases operations covered by the permit for 180 days.
F. A permit issued pursuant to this Chapter shall not be operative until and unless
all other required local, state, or federal licenses and permits have been obtained.
10.70.060 Notice of decision. Upon taking final action to issue or deny a permit
application, or to suspend or revoke a permit under Section 10.70.080, the chief of police or
designee shall give written notice of decision and the reasons to the applicant and to any other
person requesting such notice. The notice of decision shall inform the applicant or permittee of
the right to appeal under Section 10.70.070 and the time limits prescribed for such review. The
chief of police or designee shall file a proof of service with the city clerk establishing the method
and date of service. The issuance of the notice of decision shall begin the running of any period
of limitation for city council or judicial review under Section 10.70.070 as follows:
A. Three calendar days after mailing a notice of decision to the address shown on
the application by both first class mail, postage prepaid with return address clearly marked, and
by certified mail, return receipt requested. Receipt of either by the addressee shall constitute
service of notice. Actual receipt, however, shall not be a pre -requisite to the running of any
period of limitation.
B. Immediately upon personal service or personal delivery of the notice of decision
to the applicant.
10.70.070 Appeal.
A. Any applicant or permittee aggrieved by the decision of the chief of police or
designee regarding the issuance, conditional issuance, suspension, revocation or denial of a
permit, shall have a right to appeal to the city council.
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B. An appeal to the city council must be perfected within fifteen calendar days after
the service of a notice of decision by filing a letter of appeal with the city clerk stating the basis
for the appeal. An applicant or permittee filing an appeal shall pay a nonrefundable fee to the
finance department at the time the appeal is filed. The amount of such fee shall be as
determined from time to time by resolution of the city council. Upon receipt of the letter of appeal
and proof of payment of the appeal fee, the city clerk shall set the matter for consideration by
the city council at a regularly scheduled meeting as soon as reasonably practicable. The city
clerk shall give the appealing party, and any other person requesting the same, at least five
calendar days written notice of the time and place of such hearing.
C. At the time and place set for the hearing, the city council shall give the appealing
party and any other interested party a reasonable opportunity to be heard and show cause why
the determination of the chief of police or designee should not be upheld. After the chief of
police or designee has presented the statement of facts upon which the determination was
made, the burden to show that the action taken by the chief of police or designee was not based
on substantial evidence, or was arbitrary, capricious, or unjustified shall be upon the appealing
party. The determination of the city council shall be final and conclusive and shall constitute the
exhaustion of administrative remedy. The written determination of the city council shall be
served upon the appealing party by the city clerk. Service shall conform to Section 10.70.060,
and shall govern the commencement of any period of limitation for judicial review under Code of
Civil Procedure Sections 1094.6 or 1094.8, whichever is applicable.
10.70.080 Suspension and revocation.
A. The chief of police or designee may suspend or revoke any permit issued under
the provisions of this chapter if he or she finds that:
1. The operation conducted by the permittee violates or has violated any
applicable laws, including but not limited to the city's building, zoning and health regulations and
Chapters 10.70 through 10.79, as applicable;
2. The permittee, including a regulated performer or technician, or any other
person who is directly engaged in the management and operation of the regulated business
has, while the permit is in effect:
a. Allowed, committed or been convicted of an act that constitutes a
violation of law which rationally and reasonably relates to the conduct of the regulated activity,
b. Allowed or committed acts listed in Section 10.70.050(A)(2) to
occur at a regulated business, irrespective of adjudication, conviction or acquittal, or
c. Allowed a regulated performer or technician with a contagious or
communicable disease to perform services under the auspices of the permittee; or
3. The applicant or permittee had knowingly made a false, misleading, or
fraudulent material statement of fact in the permit application or any other document required in
connection with the application.
B. The chief of police or designee shall serve the permittee with a written order
stating the reasons for the suspension or revocation. The order may be for a limited period, not
to exceed ninety (90) days, or for permanent revocation. The order shall advise the permittee of
appeal rights under Section 10.70.070. The chief of police or designee may issue the order
without regard to the status of prosecution or finality of a conviction affecting a permittee, so
long as the chief of police or designee has determined that sufficient facts exist to justify the
suspension. The order shall be effective immediately if personally served, or three (3) calendar
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and Massage Establishments
days after it has been deposited in the course of regular transmission in the United States
Postal Service.
C. Except as provided under Section 10.70.080(D), immediately upon the order
becoming effective, the permittee shall cease all operations under the permit and shall
surrender the permit to the chief of police or designee.
D. In lieu of issuing an order of suspension or revocation, the chief of police or
designee may impose conditions of probation for a specified duration not to exceed one year,
during which period the permittee shall be subject to the order of suspension or revocation if the
chief of police or designee determines those conditions have been violated. If the permittee
accepts the order of probation, no appeal shall be allowed under Section 10.70.070. If, however,
the permittee objects to the terms of probation, probation shall not be allowed, the order of
suspension or revocation shall take effect, and appeal rights of the permittee under Section
10.70.070 shall then be applicable.
E. Only when an appeal is taken to the city council shall the order of suspension or
revocation be stayed pending determination by the city council in the manner set forth in Section
10.70.070 of this chapter. The determination of the city council will be final and conclusive and
constitute the exhaustion of administrative remedies. A written notice of decision of City Council
shall be served on the permittee in accordance with Section 10.70.060, and service shall begin
the period of limitation for judicial review under Code of Civil Procedure Sections 1094.6 or
1094.8, whichever is applicable.
F. Police permits issued for an establishment to conduct business regulated under
Chapters 10.71 through 10.79 are separate from and independent of any conditional use permit
that is required or issued under the provisions of Title 18 of this code. Revocation or suspension
of a police permit shall not operate to revoke or suspend a conditional use permit,
notwithstanding that the same or similar terms and conditions may be applicable to both
permits. Revocation or suspension of a police permit affects only the authority of the
establishment to provide or allow a particular form of entertainment or activity at the premises
for which the police permit is issued. The establishment may continue to conduct all other
business for which it is licensed or allowed by law to conduct, unless separate action is taken to
abate the establishment as a public nuisance or to revoke or suspend any other issued permit,
including a conditional use permit.
10.70.090 Posting or exhibiting.
A. Permits issued to an operator shall be posted in plain view at the main entrance
to the premises where the business or activity for which the permit is issued is conducted, and
shall remain posted while the permit is in force.
B. Permits issued to a regulated performer or technician shall be carried on their
person, except that the permit of a regulated performer or technician may instead be posted on
the regulated premises together with the permit issued for the regulated business or activity.
C. It is unlawful and a misdemeanor for any person subject to this chapter or
Chapters 10.71 through 10.79 to fail to post or carry an issued permit as required by this
section, or to fail to exhibit an issued permit upon demand of the chief of police or designee.
10.70.100 Inspection of premises.
A. Issuance of a police permit is conditional upon the premises regulated under
Chapter 10.71 through 10.79 being available for reasonable inspection by the police
Ordinance No. 2019 — 2454 Page 11 of 19
January 22, 2019
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and Massage Establishments
department, the fire department, the health officer, or city code compliance officials following
approval of the application and during the operating hours of the regulated business or activity.
Refusal to allow reasonable inspection during operating hours upon demand of an authorized
official is grounds for the suspension or revocation of an issued permit, or the denial of an
application for a permit. No application shall be granted if the premises do not meet applicable
requirements of law or ordinance.
B. If necessary or appropriate, the official may obtain an inspection warrant after
inspection has been denied. Inspection pursuant to an issued inspection warrant does not
mitigate or exonerate the suspension or revocation of the permit.
C. The county health officer is authorized to charge inspection fees established
within the applicable fee schedule of the county of San Diego or the National City fee schedule.
10.70.010 Duration. Unless provided otherwise in Chapters 10.71 through 10.79,
permits issued pursuant to this chapter remain valid until revoked, surrendered, or abandoned.
10.70.120 Transfer of permit. It is unlawful to transfer a permit from one person to
another. It is unlawful to use a permit at another location except with the written approval of the
chief of police or designee. An application for transfer of permit to another location shall be in
writing and accompanied by a processing fee established in the National City fee schedule. The
application for transfer shall contain the same information required for an initial application for a
permit. Any transfer of a permit in violation of this Section 10.70.120 is void and shall confer no
rights upon the transferee nor create any obligation upon the city to honor the transfer or to
afford notification or appeal rights under Sections 10.70.060 or 10.70.070 to either the transferor
or the transferee.
10.70.130 Transition provisions.
A. A business lawfully conducting business in the city as of the effective date of this
Chapter 10.70 that is to be regulated by Chapters 10.71 through 10.79 will be issued an
appropriate police permit by the chief of police or designee without further payment of fees,
provided the business or activity was otherwise in compliance with the regulatory and fiscal
provisions of the municipal code in effect immediately prior to the enactment of this ordinance.
Permits issued pursuant to this Section 10.70.130(A) shall thereafter be fully subject to the
provisions of Chapter 10.70 and Chapters 10.71 through 10.79, as applicable, regarding
administration, operation and licensing.
B. An existing business that does not meet the compliance standards for permit
issuance under Section 10.70.130(A), and all new businesses commencing operations shall
comply with Chapter 10.70 and Chapters 10.71 through 10.79, as applicable.
10.70.140 Notice of changes.
A. Permittees of establishments governed by Chapter 10.79 shall only allow
persons certified by the California Massage Therapy Council to provide massages at, or in
association with the establishment, and shall immediately notify the chief of police or designee,
in writing, of any change to the list provided pursuant to section 10.70.030(B)(14).
10.70.150 Public nuisance. Each regulated business or any business that is
required to be regulated that operates in violation of Chapter 10.70 through 10.79, as may be
applicable, is a public nuisance and may be enjoined civilly or administratively. In addition, and
Ordinance No. 2019 — 2454 Page 12 of 19
January 22, 2019
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to the extent not expressly provided elsewhere in this code, it is unlawful and a misdemeanor to
maintain a public nuisance.
10.70.160 Violations and regulatory enforcement. Violation of any of the mandatory
requirements or prohibitions contained in Chapters 10.70 through 10.79 are misdemeanors and
constitute grounds for suspension or revocation of an issued permit, except that any
requirement or prohibition designated as "regulatory only" will be treated only as grounds for
suspension or revocation of an issued permit, and criminal prosecution may not occur for that
violation.
10.70.170 Severability. The city council declares that the invalidity of any section
or portion of Chapters 10.70 through 10.79 shall not affect the validity of any other remaining
section or portion; that the council would have adopted each of those remaining portions,
notwithstanding any later declared invalidity. Any provision determined invalid under the
preceding sentence may either be severed or, if it can be judicially interpreted in a way that
could harmonize it with the remaining provisions, then it may be so judicially interpreted and, as
interpreted, be applied so as to give full purpose, meaning, and effect to the remaining
provisions.
Section 8. That Chapter 10.79 of the National City Municipal Code is amended to
read as follows:
CHAPTER 10.79
MASSAGE ESTABLISHMENTS
Sections:
10.70.010 Title and administration.
10.70.020 Purpose and intent.
10.70.030 Definitions.
10.70.040 Massage operator permit required.
10.70.050 Massage technician's certification required.
10.70.060 Minimum facilities required.
10.70.070 Massage establishment operating requirements.
10.70.080 Massage establishment — Prohibited conduct.
10.70.090 Off -premises massage — Prohibited.
10.70.100 Existing businesses — Regulated.
10.70.110 Exemptions.
10.70.120 Inspection by officials.
10.70.130 Unlawful massage establishment or operation.
10.79.010 Title and administration. This chapter may be referred to as the National
City massage establishment ordinance. Issuance and administration of permits is governed by
Chapter 10.70.
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January 22, 2019
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10.79.020 Purpose and intent. It is the purpose and intent of this chapter to provide
for the orderly regulation of a massage establishment business in the city in order to protect the
public health, safety, and welfare by promulgating minimum standards for the establishment and
operation of those businesses and to prevent the facilitation of prostitution.
10.79.030 Definitions. Whenever in this chapter the following words or phrases are
used, they shall mean as follows:
A. California Massage Therapy Council (CAMTC) means the state organized non-
profit organization created to regulate the massage industry set forth in Chapter 10.5 of Division
2 of the California Business and Professions Code, commencing with section 4600.
B. CAMTC certificate means a current and valid certificate issued by the California
Massage Therapy Council to a massage technician.
C. "Massage" means any method of pressure on, or friction against, or stroking,
kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body
with the hands or other parts of the body, with or without the aid of any mechanical or electrical
apparatus or appliances or with or without such supplementary aids as rubbing alcohol,
liniments, antiseptic, oils, powder, creams, lotions, ointments, or other preparations commonly
used in this practice.
D. "Massage establishment" means an establishment where massage is
administered.
E. "Massage practitioner," "massage technician," or "technician" means any person,
including a holistic health practitioner as defined in Subsection H, who gives or administers to
another person of the same or opposite gender, for any form of consideration, a "massage" as
defined in this chapter.
F. "Massage establishment operator" or "operator" means any person, including a
holistic health practitioner as defined in Subsection H, who operates an establishment to give or
administer to another person of the same or opposite gender, for any form of consideration, a
"massage" as defined in this chapter. This includes any person who supervises, manages,
directs, organizes, controls, or in any other way is responsible for or in charge of the daily
operation, conduct, or activities of a massage establishment.
G. "Massage Practitioner Certification" means a certification issued by the California
Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions
Code.
H. "Permit" under this Chapter means an annual permit to operate a massage
establishment as required by this code.
The term "specified anatomical areas" means any of the following areas of the
human body: pubic region, human genitals, perineum, anal region, and the areas of the female
breasts that include the areola and the nipple.
J. "Holistic health practitioner" means a non -medical or other health care therapist
who uses acupressure (excluding "acupuncture") or a massage specialty and therapeutic
approach in caring for clients, and who is not licensed by the state of California.
10.79.040 Massage operator permit required.
A. It is unlawful for any person to operate a massage establishment in or upon any
premises within the city without the permit required by this chapter and Chapter 10.70, except
as exempted by Section 10.79.170.
Ordinance No. 2019 — 2454 Page 14 of 19
January 22, 2019
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B. A massage establishment police regulated permit required by this chapter and
Chapter 10.70 shall be valid for one (1) year, coinciding with the city business license effective
and expiration dates. Permit renewal shall be made by the applicant within thirty (30) days prior
to the expiration of the permit. If an application for renewal of a permit and all required
information is not timely received and the permit expires, no right or privilege to continue the
massage establishment governed by Chapter 10.79 shall exist.
C. It is unlawful for the operator, owner, or other responsible person, of a massage
establishment to employ or otherwise allow a person to perform massage who does not have a
valid massage practitioner certification issued by the California Massage Therapy Council
pursuant to Chapter 10.5 of the California Business and Professions Code or CAMTC
certificate.
D. The owner or operator of a massage establishment shall submit a revised list
with the information specified in Section 10.70.030.B.15 to the Police Department within five (5)
business days upon any change to the list.
10.79.050 Massage technician's certification required.
A. It is unlawful for any person to perform services as a massage technician without
a valid massage practitioner certification issued by the California Massage Therapy Council
pursuant to Chapter 10.5 of the California Business and Professions Code.
B. A massage practitioner certification does not authorize the operation of a
massage establishment. Any person or massage technician who desires to operate a massage
establishment must apply separately to the City for a permit and a business license.
10.79.060 Minimum facilities required. No permit to conduct a massage
establishment shall be granted unless an inspection by the chief of police or designee and the
county health officer and the fire and building officials demonstrates that the proposed
establishment does or will comply with each of the following minimum requirements:
A. A recognizable and legible sign is posted at the main entrance identifying the
premises as a massage establishment;
B. Minimum lighting of at least forty watts is provided in accordance with the
building code of the city;
C. Minimum ventilation is provided in accordance with the building code of the city;
D. Equipment approved by the health department for disinfecting and sterilizing
instruments used in performing acts of massage is provided;
E. Hot and cold running water is provided at all times;
F. Closed cabinets are provided, which cabinets shall be utilized for the storage of
clean linen;
G. Adequate dressing, locker, and toilet facilities are provided for patrons. A
minimum of one dressing room containing a separate locker for each person to be served,
which locker shall be capable of being locked, and a minimum of one toilet and one wash basin
shall be provided by every massage establishment;
H. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms, and all other
physical facilities for the establishment must be in good repair and maintained in a clean and
sanitary condition. Wooden surfaces must be painted with a washable, mold resistant paint. Wet
and dry heat rooms, steam or vapor rooms, or steam or vapor cabinets, shower compartments
Ordinance No. 2019 — 2454 Page 15 of 19
January 22, 2019
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and toilet rooms must be thoroughly cleaned and disinfected each day the business is in
operation with a disinfectant approved by the health department. Bathtubs must be thoroughly
cleaned and disinfected after each use with a disinfectant approved by the health department,
and;
A minimum of one separate wash basin is provided in each massage
establishment for the use of employees of any such establishment, which basin shall provide
soap or detergent and hot and cold running water at all times, and is located within or as close
as practicable to the area devoted to the performing of massage services. In addition, there
must be provided at each washbasin sanitary towels placed in permanently installed dispensers.
10.79.070 Massage establishment operating requirements. No person, association,
partnership, or corporation may engage in, conduct or carry on, or permit to be engaged in,
conducted or carried on the operation of a massage establishment unless each and all of the
following requirements are met:
A. Massage operations may only be carried on, and the premises may only be
open, between the hours of 10:00 a.m. and 10:00 p.m.
B. A list of services available and the cost of such services shall be posted in an
open and conspicuous public place on the premises. The service shall be described in readily
understandable language in English and may also then be described in any other language. No
owner, operator, responsible managing employee, manager, permittee, or licensee in charge of
or in control of the massage establishment shall permit and no massage technician shall offer or
perform, any service other than those posted.
C. The massage establishment business tax license, massage establishment
permit, and a copy of the permit of each and every massage technician employed by or working
in the establishment must be displayed in an open and conspicuous public place on the
premises.
D. Hot and cold running water under pressure shall be provided to all washbasins,
bathtubs, showers, and similar equipment. Each washbasin shall be provided with soap or
detergent and sanitary towels placed in permanently installed dispensers. A trash receptacle
shall be provided in each toilet room.
E. Clean and sanitary towels, sheets and linens shall be provided for each patron
receiving massage services. No common use of towels or linens shall be permitted, and reuse
is prohibited unless they have been first laundered. Heavy white paper may be substituted for
sheets, provided that such paper is used once for each person and then discarded into a
sanitary receptacle.
F. Disinfecting agents and sterilizing equipment shall be available for any
instruments used in performing any massage. Instruments will be disinfected or sterilized after
each use.
G. Pads used on massage tables shall be covered in a workmanlike manner with
durable, washable plastic or other waterproof material.
H. Each establishment shall provide to all patrons clean, sanitary, and opaque
coverings capable of covering the patron's specified anatomical areas. Such coverings shall be
used for one customer only and shall not be reused without first being cleaned.
No owner, operator, responsible managing employee, manager, or permittee in
charge of or in control of a massage establishment shall permit a massage to be given unless
Ordinance No. 2019 — 2454 Page 16 of 19
January 22, 2019
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Police Regulated Businesses
and Massage Establishments
the patron's specified anatomical areas are covered during the entire massage by the covering
referred to in subsection (H).
J. With the exception of bathrooms or dressing rooms not open to public view, no
person or persons shall be permitted in any area within the massage establishment which is
used in common by the patrons or which can be viewed by patrons from such an area, unless
the specified anatomical areas of all persons within that area are fully covered.
K. It is unlawful for an owner, operator, responsible managing employee, manager,
permittee in charge of or in control of a massage establishment to permit any massage
technician to perform any service or task while in the presence of a patron or to be on the
premises of a massage establishment during its hours of operation unless the massage
technician is dressed in a manner that does not violate paragraph (10) of subdivision (a) of
Section 4609 of the California Business and Professions Code.
L. Any person performing services as a massage technician must wear a visible
CAMTC identification card and have a copy of their driver's license or any other photo
identification card issued by a State or Federal agency readily available for inspection by City or
County investigating officials.
M. An operator or owner must be on the business premises at all times during hours
of operation of the business.
N. For each massage service provided, every massage establishment shall keep a
complete and legible written record of the following information: the date and hour that service
was provided; the service received; the name or initials of the employee entering the
information; and the name of the massage practitioner administering the service. Such records
shall be open to inspection and copying by the chief of police or designee, or may be used by
any massage practitioner or operator as records of service provided, but may not be provided to
other parties by the massage practitioner or operator unless otherwise required by law. Such
records shall be retained on the premises of the massage establishment for a period of two (2)
years and be immediately available for inspection during business hours.
O. No massage establishment located in a building or structure with exterior
windows fronting a public street, highway, walkway or parking area shall block visibility into the
interior reception and waiting area through the use of curtains, closed blinds, tints, or any other
material that obstructs, blurs, or unreasonably darkens the view into the premises.
P. All signs shall be in accordance with the current ordinances of the City of
National City.
10.79.080 Massage establishment — Prohibited conduct. In addition to the
conduct/activities, items, and/or substances prohibited by Federal and State laws, the following
conduct is prohibited at Massage Establishments:
A. The sale, service, or consumption of alcohol or marijuana; and
B. Audio and/or video recording of, or monitoring of, the patron, the massage
therapist, or the massage therapy, without the prior written consent of the patron; and
C. Residing in or at the massage establishment by any person including but not
limited to the operator, owner, responsible person, or employee of the massage establishment;
and
D. Advertising or marketing illegal activity, advertising or marketing sexual content
related to massage therapy, or advertising or marketing sexual content in the promotion of the
massage establishment; and
Ordinance No. 2019 — 2454 Page 17 of 19
January 22, 2019
Amending NCMC 10.70 & 10.79
Police Regulated Businesses
and Massage Establishments
E. Use or possession of adult -oriented merchandise, including "sex toys" and/or
condoms, in any part of a massage establishment; and
F. Any sexual activity at a massage establishment; and
G. No owner, operator, responsible managing employee, manager, permittee, or
licensee in charge of or in control of a massage establishment shall permit any person to
massage or intentionally touch the specified anatomical areas of another person while
performing the services of a massage technician.
10.79.090 Off -premises massage — Prohibited. It is unlawful for any person to
engage in, conduct, carry on, or permit to be engaged in, conducted or carried on, massage, for
any form of consideration, in any hotel room, motel room, guesthouse or other place of public
accommodation. This section shall not be construed to prohibit:
A. Maintaining a licensed massage establishment upon the premises of a place of
public accommodation; or
B. The holder of a massage practitioner certification issued by the California
Massage Therapy Council pursuant to Chapter 10.5 of the California Business and Professions
Code from giving or administering massages within hospitals, convalescent centers, rest
homes, offices, or the private home of a patron. For the purposes of this section, offices and
private homes shall not include hotel rooms, motel rooms, or guest houses.
10.79.100 Existing businesses —Regulated. The provisions of this chapter shall be
applicable to all persons and businesses described in this chapter whether the described
activities in the chapter were established before or after the effective date of this chapter. Any
existing massage technician who performs massage and any massage establishment that
employs or utilizes persons to perform massage within the jurisdiction of the City, that operates
with a valid and current business license issued by the City and all other necessary approvals
issued prior to the effective date of any amended regulations in this Chapter or Chapter 10.70,
and that operates in compliance with all local, State and Federal laws, ordinances, rules and
regulations, must be in full compliance with Chapters 10.70 and 10.79 no later than 60 days
following the effective date of any new regulations.
10.79.110 Exemptions. This chapter shall not apply to:
A. Physicians, surgeons, chiropractors, osteopaths, psychiatrists, psychologists,
acupuncturists, physical therapists, family counselors or other health care professionals who are
licensed to practice their respective professions by the state of California or who are permitted
to practice temporarily under the auspices of an associate or establishment duly licensed by the
state of California, pursuant to the Business and Professions Code;
B. Nurses and other health care professionals who are registered or licensed under
the laws of this state and administer a massage in the normal course of professional health care
duties;
C. A trainer of any duly constituted athletic team or athlete who administers
massage in the normal course of training duties to the team or athlete;
D. Barbers, cosmetologists, and estheticians duly licensed under the laws of the
state who administer a massage incidental to a barber or beauty service provided in the normal
performance of their profession. This exemption shall apply only if massage is provided from a
fixed and permanent location of business;
Ordinance No. 2019 — 2454 Page 18 of 19
January 22, 2019
Amending NCMC 10.70 & 10.79
Police Regulated Businesses
and Massage Establishments
E. Therapeutic massage administered in or under the auspices of any health facility,
hospital or other establishment licensed under California statutes in which the above -described
persons practice their respective professions, provided the massages are given only by exempt
individuals or persons acting under their supervision;
F. Any bona fide athletic club which offers tennis, racquetball, swimming or other
sport activities and possesses a sauna or steam room. Massage shall only be administered to
members of the athletic club by persons who are exempt under this section.
10.79.120 Inspection by officials. The city, county, or any investigating official shall
have the right to enter the premises of the Massage Establishment from time to time during
regular business hours to conduct reasonable inspections to enforce compliance with this
Chapter, Chapter 10.70, and with building, fire, electrical, plumbing, and/or State and local
health and safety regulations.
No person shall refuse to permit or interfere with a lawful inspection of the Massage
Establishment by City or County investigating officials.
10.79.130 Unlawful massage establishment or operation. Any Massage
Establishment operated, conducted or maintained contrary to the provisions of this Chapter,
Chapter 10.70 and/or State and Federal laws shall be and the same is hereby declared to be
unlawful and a public nuisance. The City Attorney may, in addition to, or in lieu of prosecuting a
criminal action hereunder, commence an action or actions, proceeding or proceedings for the
abatement, removal, or enjoinment thereof, in any manner provided by law, including as
provided in Chapter 10.70.
ATTEST:
PASSED and ADOPTED this 22nd day of January
1/()
kl�
Mich , y Clerk
el R. Dalla Ci
APPROVED AS
Mod
Attorney
TO FORM:
Ordinance No. 2019 — 2454
January 22, 2019
Page 19 of 19
lejandr
Mayor
Amending NCMC 10.70 & 10.79
Police Regulated Businesses
and Massage Establishments
Passed and adopted by the Council of the City of National City, California, on
January 22, 2019, by the following vote, to -wit:
Ayes: Councilmembers Cano, Morrison, Rios, Sotelo-Solis.
Nays: None.
Absent: None.
Abstain: None.
AUTHENTICATED BY:
ALEJANDRA SOTELO-SOLIS
Mayor of the City of National City, California
a24LdhP/J
City Clerk of the City of Nal City, California
By:
Deputy
I HEREBY CERTIFY that the foregoing Ordinance was adopted on January 22, 2019,
under the provisions of Section 65858 of the California Government Code and became
effective immediately upon said adoption.
I FURTHER CERTIFY THAT said Ordinance was read in full prior to its final passage or
that the reading of said Ordinance in full was dispensed with by a vote of not less than
a majority of the members elected to the Council and that there was available for the
consideration of each member of the Council and the public prior to the day of its
passage a written or printed copy of said Ordinance.
I FURTHER CERTIFY that the above and foregoing is a full, true and correct copy of
ORDINANCE NO. 2019-2454 of the City Council of the City of National City, passed
and adopted by the Council of said City on January 22, 2019.
City Clerk of the City of National City, California
By:
Deputy