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Any operator permit or Establishment Registration Certificate issued pursuant to this chapter may be suspended or revoked by the Permit Administrator after a hearing, where it is found by clear and convincing evidence that any of the following have occurred:
A. Finding of violation. The person(s) to whom the operator permit or Establishment Registration Certificate has been issued, or any person employed or retained by the massage establishment, has been found to have violated any provision of this chapter; or
B. Owner not certified. Any owner of a massage establishment which is operating pursuant to a Establishment Registration Certificate is no longer qualified as a Certified Massage Practitioner for any reason; or
C. Prohibited conduct. The permittee, certificate holder, or any person employed or retained by the massage establishment has been convicted in a court of competent jurisdiction of having violated, or has engaged in conduct constituting a violation of, any of the following: California Penal Code Sections 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22, or conspiracy or attempt to commit any such offense, or any offense in a jurisdiction outside of the state of California that is the equivalent of any of the aforesaid offenses; or
D. Registration under Penal Code § 290. The permittee, certificate holder, or any person employed or retained by the massage establishment is required to register under Section 290 of the California Penal Code; or
E. Nuisance injunction. The permittee or certificate holder has been subject to a permanent injunction against the conducting or maintaining of a nuisance pursuant to this code, or Section 11225 through 11235 of the California Penal Code, or any similar provision of law in any jurisdiction outside the state of California; or
F. Fraud or misrepresentation. The permittee, certificate holder, or any employee has engaged in fraud or misrepresentation or has knowingly made a misstatement of material fact while working in or for the massage establishment; or
G. Operation during suspension. The permittee or certificate holder has continued to operate the massage establishment after the operator permit or Establishment Registration Certificate has been suspended; or
H. Massage without certification. Massage has been performed on the premises with or without the permittee or certificate holder's actual knowledge, by any person who is not a duly authorized Certified Massage Practitioner; or
I. Prohibited acts. There have been one or more acts prohibited under California Penal Code Sections 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22 taking place on the premises, whether or not any criminal prosecution has been pursued or conviction obtained for such acts, and whether or not they occurred with or without the actual knowledge of the permittee or certificate holder; or
J. Sexual touching. The permittee, certificate holder, or any person employed or retained by the massage establishment or any other person on the premises of the massage establishment has engaged in conduct or committed acts that a reasonable person in a patron's position would understand as an offer to perform on or engage in with the patron acts that are sexual in nature or that involve touching of the patron's genitals, pubic area, anus, and areola.
K. Negligent supervision. The permittee or certificate holder failed to provide adequate supervision of the massage establishment, resulting in a pattern of at least three (3) violations of this code or state or federal law.
(Ord. 2011-02 § 1(part), 2011)
A. Written notice required. The Permit Administrator, before revoking or suspending any operator permit or Establishment Registration Certificate, shall give the permittee or certificate holder at least ten (10) business days' written notice of the alleged grounds for revocation or suspension and shall conduct a hearing in the matter of whether the permit or certificate shall be revoked or suspended. The hearing shall be conducted at least ten (10) business days from the date of written notice which shall be provided in the manner set forth in Section 8.24.050 of this code.
B. Hearing. The Permit Administrator shall consider all evidence at the hearing. The hearing may, after being commenced within the time specified pursuant to subsection A. of this section, be continued for good cause by the Permit Administrator from time to time. The Permit Administrator shall, at the conclusion of the hearing, make findings of fact based upon the evidence submitted and shall decide whether or not the permit or certificate shall be revoked or suspended.
C. Notice of Decision. The Permit Administrator's written notice of decision shall be served on the permittee or certificate holder, within thirty (30) business days of the conclusion of the hearing, in the manner provided in Section 8.24.050 of this code, and, in the case of a revocation or suspension, such Notice of Decision shall indicate the appeal procedures as set forth hereinafter.
D. Appeal. Any applicant, permittee, or certificate holder shall have the right to appeal from a decision by the Permit Administrator to deny a permit or certificate application or renewal application, or to approve such an application with conditions, or to suspend or revoke an operator permit or Establishment Registration Certificate, by filing with the City Clerk a written notice of appeal specifying the grounds for such appeal, within ten (10) business days after the decision has been served on the applicant or permittee or certificate holder. The appeal must also include the appeal fee established by resolution of the City Council and included within the Master Fee Schedule. Such appeal shall be heard by an administrative hearing officer appointed by the City Manager or his/her designee, upon not less than ten (10) business days written notice to the appellant. The designated administrative hearing officer shall consider all relevant evidence at the hearing, may continue the hearing for good cause, and shall require such legal briefing as may be required to address any issues raised by the appeal. Within a reasonable time, but not more than twenty (20) business days following the conclusion of the hearing, the administrative hearing officer shall issue a written decision affirming, denying, or modifying the decision from which the appeal was taken, supported by factual findings and determinations referenced by supporting evidence. The written decision shall be served on the appellant as provided in Code of Civil Procedure Section 1094.6(b), with a copy submitted to the City Clerk and the City Attorney. The written decision of the administrative hearing officer shall be final and shall be subject to judicial review according to the provisions and time limits set forth in Code of Civil Procedure Section 1094.6.
(Ord. 2011-02 § 1(part), 2011)
The requirements of this chapter shall be in addition to any business license and business license tax requirements imposed pursuant to Chapter 5.04 of this code for operation of a massage establishment.
(Ord. 2011-02 § 1(part), 2011)
This chapter 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, osteopaths, podiatrists, physical therapists, nurses, or any other person licensed to practice any healing art under the provisions of Division 2 (commencing with Section 500) of the Business and Professions Code 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 as their primary occupation at any location where they provide such services in the city.
C. Barbers, estheticians and cosmetologists who are duly licensed under the laws of the State of California, while engaging in practices within the scope of their licenses.
D. Individuals in the city temporarily for educational events or disaster relief.
E. Individuals administering massages or health treatments involving massage to persons participating in road races, track meets, triathlons, educational events, conferences or similar single-occurrence athletic, recreational, or educational events.
F. Somatic practitioners who use no physical touch of any kind at any time in their practice.
G. 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 has first notified the Permit Administrator in writing of the name, residence address, and school of the students and the dates of the trainings.
(Ord. 2011-02 § 1(part), 2011)
Any massage provided or massage establishment operated, conducted, or maintained contrary to the provisions of this chapter shall be, and the same is hereby declared to be, a misdemeanor and a public nuisance, and 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 and enjoinment thereof, in the manner provided by law. Such remedies shall be in addition to any other judicial and administrative penalties and remedies available to the city under this code or state or federal law.
(Ord. 2011-02 § 1(part), 2011)