In enacting this chapter, the City Council recognizes that massage
therapy is a professional pursuit which can offer the public valuable
health and therapeutic services, but that unless properly regulated,
the practice of massage therapy and the operation of massage businesses
may be associated with unlawful activity and pose a threat to the
quality of life in the local community. It is the purpose and intent
of this chapter to provide for the orderly regulation of offices and
establishments providing massage therapy services, and to prevent
and discourage the misuse of massage therapy as a front for human
trafficking, prostitution, and related activities in violation of
state law, all in the interests of the public health, safety, and
welfare, by providing certain minimum building, sanitation, and operation
standards for such businesses, and by requiring certain minimum qualifications
for the operators and practitioners of such businesses. It is the
further intent of this chapter to streamline local massage therapy
permitting procedures, while still facilitating and advancing the
ethical practice of massage therapy, by relying upon the uniform statewide
regulations enacted by the Legislature in 2008 as Business and Professions
Code Sections 4600 et seq., known as the Massage Therapy Act, as subsequently
amended, and by restricting the commercial practice of massage in
the city to those persons duly certified to practice by the California
Massage Therapy Council formed pursuant to those statutes.
(Ord. 3064-15 § 1)
For the purpose of this chapter, unless the context clearly
requires a different meaning, the words, terms, and phrases set forth
in this section shall have the meanings that are given them in this
section:
means a massage professional who is identified in a permit
issued pursuant to this chapter as a person employed or retained by
a massage establishment to practice massage.
means the massage therapy organization formed pursuant to
Business and Professions Code Section 4600 et seq.
means any individual currently certified by the California
Massage Therapy Council as a massage therapist or massage practitioner
pursuant to Business and Professions Code Section 4600 et seq.
means the payment, loan, advance, donation, contribution,
deposit, exchange, or gift of money or anything of value.
means the director of public safety or his or her designee
charged with the administration of this chapter.
means the person or persons designated by the city to conduct
any inspections required or permitted under this chapter.
for purposes of this chapter mean the skillful application
of touch, including but not limited to, pressure, stroking, kneading,
compression on or movement of the external surfaces of the body by
a practitioner to produce increased awareness, relaxation, pain relief,
injury rehabilitation, or neuromuscular reeducation.
means any business that offers massage therapy, baths or
health treatments including, but not limited to, aromatherapy, vapor,
shower, electric tub, sponge, hot towels, mineral fermentation, sauna,
steam or any other type of bath, involving massages or baths in exchange
for compensation. Home-based massage businesses and businesses that
provide outcall massage services are also considered to be massage
establishments. For purposes of this chapter, the term "massage establishment"
may be applied to include establishments which offer or advertise
themselves as providing "relaxation" or "tanning" where the essential
nature of the interaction between the employee and the customer involves
"massage" as defined herein. The terms, names or phrases listed on
business license or fictitious name application forms are not necessarily
conclusive as to the nature of the business.
means any of the following persons:
The sole proprietor of a sole proprietorship operating a massage
establishment.
Any general partner of a general or limited partnership that
owns a massage establishment.
Any person who has a ten percent or greater ownership interest
in a corporation that owns a massage establishment.
Any person who is a member of a limited liability company that
owns a massage establishment.
All owners of any other type of business association that owns
a massage establishment.
means any person who is an owner or manager of a massage
establishment.
means the engaging in or carrying on of massage therapy for
compensation at locations other than a massage establishment at a
fixed location.
means an individual on the premises of a massage establishment
for the purpose of receiving massage therapy.
means any individual, firm, association, partnership, corporation,
joint venture, limited liability company, or combination of individuals.
means an area immediately inside the main entry door of the
massage establishment dedicated to the reception and waiting of patrons
or visitors of the massage establishment and which is not a massage
therapy room or otherwise used for the provision of massage therapy
services.
means a massage establishment where the owner owns one hundred
percent of the business and has one or no other employees or independent
contractors.
means any individual not retained or employed by the massage
establishment and not receiving or waiting to receive massage therapy
services, but excluding law enforcement personnel or governmental
officials performing governmental business.
(Ord. 3064-15 § 1)
The requirements of this chapter are in addition to any business license and business license tax requirements imposed pursuant to Chapter 5.04 of this code.
(Ord. 3064-15 § 1)
The requirements of this chapter are in addition to any permits
or authorizations that may be required under other applicable laws
including but not limited to the city's building, fire, zoning, and
health regulations.
(Ord. 3064-15 § 1)
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, acupuncturists 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 therapy 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
administering massages or health treatments involving massage to persons
participating in singleoccurrence athletic, recreational, or educational
events such as road races, track meets, triathlons, educational events,
or conferences, provided that the event is open to the public or to
a significant segment of the public such as employees of sponsoring
or participating corporations, and the massage services are provided
at the site of the event during, immediately preceding, or immediately
following the event.
(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.
(Ord. 3064-15 § 1)
On or after April 30, 2016, it is unlawful for any individual
to practice massage therapy for compensation within the city unless
that individual is a CAMTC-certified massage professional.
(Ord. 3064-15 § 1)
(a)
The
city recognizes that some massage therapists and massage practitioners
currently practicing in Sunnyvale may not meet the current requirements
set forth by the CAMTC due to changes in educational or other requirements,
particularly changes in requirements concerning hours of schooling,
although the person has been in practice for a significant period.
The city will therefore allow individuals who were working in Sunnyvale
prior to the passage of this chapter and meet the requirements of
this section to practice massage under this exception without certification
from the CAMTC.
(b)
Individuals
who do not submit an initial application on or before April 30, 2016,
for the exception described in this section shall be ineligible to
qualify for the exception.
(c)
An
individual seeking this exception must demonstrate the following to
the satisfaction of the city's public safety department:
(1)
Evidence that he or she worked as a massage therapist or massage practitioner in the city for a professional listed in Section 9.41.050(a)(1) of this chapter on an ongoing basis for at least five years prior to October 30, 2015, and is currently employed with that professional; and
(2)
Evidence that he or she has certification or proof of training in
the field of massage from a school or another entity comparable to
the CAMTC and has been working as a massage therapist or massage practitioner
for a period of at least five years; and
(3)
Evidence that he or she attempted to obtain certification from the
CAMTC but was denied and the reasons for the denial to show that despite
existing training and experience, he or she was not able to qualify
for certification from CAMTC; and
(4)
Compliance with other terms of this chapter for massage establishment owners that are not certified by the CAMTC, including, but not limited to, the background check described in Section 9.41.090(k) of this chapter.
(d)
An
individual granted an exception from the CAMTC certification requirement
is required to display, in the same manner this chapter requires the
display of CAMTC certification, a statement from the city showing
that the person met the requirements of this exception.
(e)
This
exception must be renewed annually. Failure to submit an application
for renewal on or before the annual renewal date shall make the individual
ineligible for a continued exception.
(f)
Approved exceptions shall apply only to a massage practitioner's ongoing practice with the professional(s) stated in subsection (c)(1) of this section. Approved exceptions shall become invalid and CAMTC certification shall be required pursuant to Section 9.41.060 when an individual changes employment and/or accepts employment with new, additional professionals or massage establishments within the city.
(g)
The
city may establish a non-refundable fee to recover costs associated
with initial applications and annual renewals.
(Ord. 3064-15 § 1)
(a)
It
is unlawful for any person to operate a massage establishment within
the city without first obtaining a massage establishment permit from
the Department of Public Safety.
(b)
On
or after April 30, 2016, it is unlawful for a massage establishment
operator to employ or retain any person to practice massage therapy
for compensation, or to allow any person to perform massage therapy
for compensation on the premises of a massage establishment, unless
that person is a CAMTC-certified massage professional and unless that
person is identified as an authorized massage professional on the
permit issued pursuant to this chapter. For purposes of this chapter,
a massage establishment operator "employs or retains" a person to
practice massage therapy for compensation when:
(1)
That person is a directly paid employee of the massage establishment;
or
(2)
That person's association with a massage establishment is that of
an independent contractor who receives compensation for massage therapy
provided to patrons of the massage establishment; or
(3)
That person receives a referral of patrons from the massage establishment
and, at any time before or after the referral, arranges in any way
for compensation to flow to the massage establishment operator.
(c)
It
is unlawful for a massage establishment to operate under any name
or conduct business under any designation not specified in the massage
establishment permit issued pursuant to this chapter.
(d)
It
is unlawful for a massage establishment to continue to operate following
the sale or transfer of any interest in the massage establishment
to a person who was not identified as an owner in the massage establishment
permit application.
(Ord. 3064-15 § 1)
The owners of the massage establishment shall file an application
for a permit on a form provided by the director. The application shall
be accompanied by the fee established by the city's fee schedule.
The application shall include the following information:
(a)
The
name, address, and telephone number of the massage establishment.
(b)
The
name, residence address and telephone number, and business address
and telephone number of each owner of the massage establishment.
(c)
The
form of business under which the applicant will be conducting the
massage establishment, i.e., corporation, general or limited partnership,
limited liability company, or other form. If the applicant is a corporation,
the name of the corporation shall be set forth exactly as shown in
its articles of incorporation, together with the names and residence
addresses of each of its officers, directors, and each shareholder
holding more than ten percent of the stock of the corporation. If
the applicant is a general or limited partnership, the application
shall set forth the name and residence address of each of the partners,
including limited partners. If one or more of the partners is a corporation,
the provisions of this section pertaining to a corporate applicant
shall apply. If the applicant is a limited liability company, the
application shall set forth the name and residence address of each
of the members. If one or more of the members is a partnership, limited
liability company, or corporation, the provisions of this section
pertaining to a partnership, limited liability company, or corporate
applicant shall apply, as applicable.
(d)
The
name, address, and telephone number of the owner of the real property
upon, in, or from which the certified massage establishment is to
be operated. In the event the applicant is not the legal owner of
the property, the application shall be accompanied by a copy of any
written lease between the applicant and the property owner authorizing
use of the premises for a massage establishment, or, alternatively,
if there is no written lease, then a written, notarized acknowledgment
from the property owner that the property owner has been advised that
a massage establishment will be operated by the applicant upon, in,
or from the property owner's property.
(e)
If
the massage establishment will be located on a property in a residential
or commercial condominium or other common interest development, the
applicant shall submit a notarized statement from the homeowner's
association or condominium owner's association acknowledging that
the association has been advised that a massage establishment will
be operated by the applicant and that such use of the property is
allowed by the property's covenants, codes, and restrictions.
(f)
A
description of the proposed massage establishment, including the type
of treatments to be administered.
(g)
The
name of each individual who the massage establishment employs or retains
to perform massage therapy for compensation, whether on or off the
massage establishment premises.
(h)
The
name of each individual who is regularly employed or retained by the
massage establishment to perform services on the premises other than
massage therapy, and the nature of their services.
(i)
For
each individual who the massage establishment does or will employ
or retain to perform massage therapy for compensation, whether on
or off the massage establishment premises, a copy of that individual's
current certification from the CAMTC as a certified massage practitioner
or certified massage therapist, and a copy of his or her current CAMTCissued
identification card.
(j)
For
each owner of the massage establishment who is a CAMTC-certified massage
professional, a copy of his or her current certification from the
CAMTC as a certified massage practitioner or as a certified massage
therapist and a copy of his or her current CAMTC-issued identification
card.
(k)
For
each owner of the massage establishment who is not a CAMTC-certified
massage professional, the following information:
(1)
Whether any owner of the massage establishment has within the five
years immediately preceding the date of application been convicted
of any felony in any state.
(2)
Whether any owner of the massage establishment is currently required
to register under the provisions of Section 290 of the California
Penal Code.
(3)
The business, occupation, and employment history of each owner of
the massage establishment for five years preceding the date of application,
and the inclusive dates of same.
(4)
One set of fingerprints to be taken at the permit authority, and
any required fee for such fingerprinting shall be paid by the applicant.
(l)
Whether
any license or permit has ever been issued to the applicant by any
jurisdiction under the provisions of any ordinance or statute governing
massage or somatic practice, and as to any such license or permit,
the name and address of the issuing authority, the effective dates
of such license or permit, whether such license or permit was ever
suspended, revoked, withdrawn, or denied; and copies of any documentary
materials relating to such suspension, revocation, withdrawal, or
denial.
(m)
Such
other information as may be required by the permit authority to determine
compliance with any other eligibility requirements for issuance of
the permit as specified by federal, state, or local law.
(n)
A
statement that within the last five years the applicant has not failed
to comply with a final court order or administrative action of an
investigatory agency finding a violation of applicable federal, state
and local wage and hour laws, including, but not limited to, the Federal
Fair Labor Standards Act, the California Labor Code, and any local
minimum wage ordinance or prevailing wage requirements. For purposes
of this subsection, a final court order or administrative action is
one as to which there is no pending appeal and the time for filing
an appeal has passed.
(Ord. 3064-15 § 1; Ord. 3133-18 § 5)
(a)
The director shall issue a massage establishment permit if the applicant meets the requirements of this chapter and no grounds for denial exist under Section 9.41.110. The director may impose conditions on the permit consistent with this chapter and applicable law.
(b)
Notice
to Property Owner. If the applicant is not the record owner of the
property where the massage establishment is located, the director
may send a written notice to the property owner advising of the issuance
of the permit and of the regulations applicable to the massage establishment.
The director may also provide the property owner with copies of any
other notices or communications with the applicant sent at any time
before or after issuance of the permit.
(c)
Term.
A massage establishment permit issued pursuant to the terms of this
chapter shall be valid for a term of one year from the date of issuance,
and, unless suspended or revoked, must be renewed by the massage establishment
operator annually so long as the massage establishment is operating
within the city.
(Ord. 3064-15 § 1)
The director may deny an application for a massage establishment
permit on any of the following grounds:
(a)
The
massage establishment, as proposed by the applicant, would not comply
with the requirements of this chapter.
(b)
The
massage establishment, as proposed by the applicant, would not comply
with any applicable law, including, but not limited to the city's
building, fire, zoning, and health regulations.
(c)
The
applicant has knowingly made any false, misleading or fraudulent statement
of material fact in the application for a massage establishment permit.
(d)
Any
owner of the massage establishment, within five years immediately
preceding the date of filing of the application, has been convicted
in a court of competent jurisdiction of any offense that relates directly
to the operation of a massage establishment whether as a massage establishment
owner or operator or as a person practicing massage for compensation,
or as an employee of either; or has at any time been convicted in
a court of competent jurisdiction of any felony the commission of
which occurred on the premises of a massage establishment.
(e)
Any
owner of the massage establishment is currently required to register
under the provisions of Section 290 of the California Penal Code.
(f)
Any
owner of the massage establishment, within five years of the date
of application, has been convicted in a court of competent jurisdiction
of any violation of Sections 266, 266a, 266e, 266f, 266g, 266h, 266i,
266j, 315, 316, 318, 647(b), or 653.22 of the California Penal Code,
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.
(g)
Any
owner of the massage establishment has been subjected to a permanent
injunction against the conducting or maintaining of a nuisance pursuant
to Sections 11225 through 11235 of the California Penal Code, or any
similar provision of law in a jurisdiction outside the State of California.
(h)
Any
owner of the massage establishment, within five years of the date
of application, and as established by clear and convincing evidence,
has engaged in acts prohibited under California Penal Code Sections
266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b),
or 653.22.
(i)
Any
owner of the massage establishment is an individual who has not attained
the age of eighteen years.
(j)
Any
owner of the massage establishment, within five years immediately
preceding the date of filing of the application, has had a permit
or license to practice massage for compensation or to own and/or operate
a massage establishment revoked or denied in any jurisdiction.
(k)
Any
owner of the massage establishment currently owns or operates a massage
establishment in the city of Sunnyvale that is not in good standing
due to the existence of uncorrected violations or unpaid fines or
fees.
(l)
Within
the last five years, the applicant has failed to comply with a final
court order or administrative action of an investigatory agency finding
a violation of applicable federal, state and local wage and hour laws,
including, but not limited to, the Federal Fair Labor Standards Act,
the California Labor Code, and any local minimum wage ordinance or
prevailing wage requirements. For purposes of this subsection, a final
court order or administrative action is one as to which there is no
pending appeal and the time for filing an appeal has passed.
(Ord. 3064-15 § 1; Ord. 3133-18 § 5)
(a)
If
an application for a massage establishment permit is denied, the director
shall give written notice to the applicant specifying the grounds
for denial.
(b)
The
applicant may appeal the decision to deny a massage establishment
permit by filing a written notice of appeal with the city manager
or designee within fifteen days after deposit of the decision in the
mail, specifying in detail the grounds for such appeal.
(c)
The city manager or designee shall set a time and place for the hearing on the appeal not less than fifteen days after the date the appeal was received by the city manager, and shall give written notice by mail to the applicant of the date, time, and place for the hearing. The hearing shall be conducted in accordance with Section 9.41.180.
(d)
After
the hearing on the appeal, the city manager or designee may refer
the matter back to the director for a new investigation and decision,
may affirm the decision of the director, or may direct the director
to issue the license. The decision of the city manager or designee
upon such appeal 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. 3064-15 § 1)
(a)
Whenever
the information provided in the application for a certified massage
establishment on file with the city changes, the operator shall file
an application, provided by the director, to amend the permit to reflect
such change. An application to amend a massage establishment permit
shall be made by submitting an application on a form provided by the
director. The application shall be accompanied by the fee established
by the city's fee schedule.
(b)
The
application shall not be approved unless the director determines that
the terms of the amended permit comply with all requirements of this
chapter and all other local, state, and federal laws, and the massage
establishment has no outstanding violations or unpaid citations or
fees. Inspection of the massage establishment may be required prior
to approval of the amendment.
(c)
An
amendment shall not be used to change the location or owners of a
massage establishment. Instead, a new permit application is required.
(Ord. 3064-15 § 1)
(a)
Operational
Requirements. Except as otherwise specifically provided in this chapter,
the following operational requirements shall be applicable to all
massage establishments located within the city:
(1)
No massage establishment shall be kept open for business between
the hours of ten p.m. of one day and eight a.m. of the following day.
A massage begun any time before ten p.m. must nevertheless terminate
at ten p.m.
(2)
The hours of operation of the massage establishment shall be displayed
in a conspicuous public place in the reception and waiting area and
in any front window clearly visible from outside of the massage establishment.
(3)
Patrons and visitors shall be permitted in the massage establishment
only during the hours of operation.
(4)
During the hours of operation, patrons shall be permitted in massage
therapy rooms only if at least one duly authorized certified massage
professional is present on the premises of the massage establishment.
Patrons shall not be permitted in any employee break room on the premises.
(5)
During the hours of operation, visitors shall not be permitted in
massage therapy rooms except as follows:
(A)
The parents or guardian of a patron who is a minor child may be present
in the massage therapy room with that minor child;
(B)
The minor child of a patron may be present in the massage therapy
room with the patron when necessary for the supervision of the child;
or
(C)
The conservator, aid, or other caretaker of a patron who is elderly
or disabled may be present in the massage therapy room with that elderly
or disabled person.
(6)
During the hours of operation, except as otherwise provided herein,
no visitors shall be permitted in massage therapy rooms, break rooms,
dressing rooms, showers, or any other room or part of the massage
establishment premises other than the reception and waiting area or
toilet rooms.
(7)
Except for a patron who is inside a massage therapy room for the
purpose of receiving a massage, no patrons or visitors shall be permitted
in or on the massage establishment premises at any time who are less
than fully clothed in outer garments of nontransparent material, or
who display or expose themselves in underclothing or similar intimate
apparel.
(8)
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 services shall be described in English and may also be described
in such other languages as may be convenient. No massage establishment
operator shall permit, and no person employed or retained by the massage
establishment shall offer to perform any services or request or demand
fees other than those posted.
(9)
The massage establishment shall keep on the premises a complete and
current roster of all owners, operators, and managing employees of
the massage establishment and all massage professionals and other
persons employed or retained by the massage establishment. The roster
shall include the name, residence address, and phone number of each
individual. The roster shall be available for inspection by city officials
charged with the enforcement of this chapter.
(b)
Physical
Facility and Building and Fire Code Requirements. Except as otherwise
specifically provided in this chapter, the following physical facility
and building code requirements shall be applicable to all massage
establishments located within the city:
(1)
Main entry door and reception and waiting area required. One main
entry door shall be provided for patron entry to the massage establishment,
which shall open to an interior patron reception and waiting area
immediately. All patrons and any persons other than individuals employed
or retained by the massage establishment shall be required to enter
and exit through the main entry door. Unless the massage establishment
is a sole proprietorship or a home occupation with one or no other
employees, the main entry door shall be unlocked at all times during
business hours.
(2)
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.
(3)
All interior doors, including massage therapy rooms or cubicles,
but excluding individual dressing rooms, showers, and toilet rooms,
shall be incapable of being locked and shall not be blocked to prevent
opening. Draw drapes, curtain enclosures, or accordion-pleated closures
in lieu of doors are acceptable on all inner massage therapy rooms
or cubicles.
(4)
Minimum lighting equivalent to at least one forty-watt light shall
be provided in each massage therapy room or cubicle.
(5)
A massage table or professional massage chair specifically designed
for seated massage shall be used for all massage therapy, with the
exception of "Thai," "Shiatsu," and similar forms of massage therapy,
which may be provided on a padded mat on the floor, provided the patron
is fully attired in loose clothing, pajamas, scrubs, or similar style
of garment. Massage tables shall have a minimum height of eighteen
inches.
(6)
Beds, floor mattresses, and waterbeds are not permitted on the premises
of the massage establishment, and no massage establishment shall be
used for residential or sleeping purposes, which may be shown by circumstantial
evidence such as the presence of bedding, pillows, sleeping bags,
suitcases, clothing, toiletries or other personal belongings, cooking
appliances, utensils or food in excess of a business establishment's
normal requirements.
(7)
All locker facilities that are provided for the use of patrons shall
be fully secured for the protection of the patrons' valuables, and
each patron shall be given control of the key or other means of access.
(8)
The massage establishment shall comply with all applicable state
and local building and fire codes as adopted in Title 16 of this code.
(c)
Health
and Safety Requirements. Except as otherwise specifically provided
in this chapter, the following health and safety requirements shall
be applicable to all massage establishments located within the city:
(1)
The massage establishment shall at all times be equipped with an
adequate supply of clean sanitary towels, coverings, and linens, and
all massage tables or chairs shall be covered with a clean sheet or
other clean covering appropriate to the equipment for each patron.
After a towel, covering, or linen has been used once, it shall be
deposited in a closed receptacle and not used again until properly
laundered and sanitized. Towels, coverings, and linens shall be laundered
either by regular commercial laundering, or by a noncommercial laundering
process that includes immersion in water at least one hundred forty
degrees Fahrenheit for not less than fifteen minutes during the washing
or rinsing operation. Clean towels, coverings, and linens shall be
stored in closed, clean cabinets when not in use. A certified massage
professional engaged in the practice of outcall massage shall carry
a sufficient quantity of clean and sanitary towels, sheets, and linens
to comply with the requirements.
(2)
All massage therapy rooms or cubicles, wet and dry heat rooms, toilet
rooms, shower compartments, hot tubs, and pools shall be thoroughly
cleaned and disinfected as needed, and at least once each business
day when the premises has been or will be open and such facilities
in use. All bathtubs shall be thoroughly cleaned and disinfected after
each use.
(3)
All liquids, creams, or other preparations used on or made available
to patrons shall be kept in clean and closed containers. Powders may
be kept in clean shakers. All bottles and containers shall be distinctly
and correctly labeled to disclose their contents. When only a portion
of a liquid, cream, or other preparation is to be used on or made
available to a patron, it shall be removed from the container in such
a way as not to contaminate the remaining portion.
(4)
No invasive procedures shall be performed on any patron. Invasive
procedures include, but are not limited to:
(A)
Application of electricity that contracts the muscle;
(B)
Penetration of the skin by metal needles;
(C)
Abrasion of the skin below the nonliving, epidermal layers;
(D)
Removal of skin by means of any razor-edged instrument or other device
or tool;
(E)
Use of any needle-like instrument for the purpose of extracting skin
blemishes; and
(F)
Other similar procedures.
(5)
All bathrobes, bathing suits, and/or other garments that are provided
for the use of patrons shall be either fully disposable and not used
by more than one patron, or shall be laundered after each use pursuant
to subsection (c)(1) of this section.
(6)
All combs, brushes, and/or other personal items of grooming or hygiene
that are provided for the use of patrons shall be either fully disposable
and not used by more than one patron, or shall be fully disinfected
after each use.
(7)
No patrons shall be allowed to use any shower facilities of the massage
establishment unless such patrons are wearing slip-resistant sandals
or flip-flops while in the shower compartment. All footwear such as
sandals or flip-flops that are provided for the use of patrons either
shall be fully disposable and not used by more than one patron, or
shall be fully disinfected after each use.
(8)
Patrons' genitals and female patrons' breasts must be fully draped
at all times while any individual employed or retained by the massage
establishment is in the massage room or cubicle with the patron. No
massage shall be provided to a patron that results in intentional
contact, or occasional and repetitive contact, with the genitals or
anal region of a patron, or of a female patron's breasts without the
written consent of the person receiving the massage and a referral
from a licensed California health care provider.
(9)
No alcoholic beverages shall be sold, served, or furnished to any
patron; nor shall any alcoholic beverages be kept or possessed on
the premises of a massage establishment.
(d)
Attire
and Physical Hygiene Requirements. The following attire and physical
hygiene requirements shall be applicable to all employees and any
other persons who work permanently or temporarily on the premises
of a massage establishment within the city, including, but not limited
to, all persons who are employed or retained to practice massage for
the massage establishment:
(1)
No person shall dress in:
(A)
Attire that is transparent, see-through, or substantially exposes
the person's undergarments;
(B)
Swim attire, unless providing a water-based massage modality approved
by the CAMTC;
(C)
A manner that exposes the person's chest, breasts, buttocks, or genitals;
(D)
A manner that constitutes a violation of Section 314 of the California
Penal Code.
(2)
No massage establishment operator, employee, or visitor shall, while
on the premises of a massage establishment or while performing any
outcall massage service, and while in the presence of any patron,
customer, employee or visitor, expose his or her chest, breast, buttocks,
or genitals.
(3)
All persons shall thoroughly wash their hands with soap and water
or any equally effective cleansing agent immediately before providing
massage to a patron. No massage shall be provided upon a surface of
the skin or scalp of a patron where such skin is inflamed, broken
(e.g., abraded or cut), or where a skin infection or eruption is present.
(e)
Display
of Permit and Certifications.
(1)
The massage establishment permit shall be displayed in an open and
conspicuous place on the premises visible from the main entry door
and/or reception and waiting area of the massage establishment.
(2)
Each person employed or retained by a massage establishment to perform
massage in or on the premises or through an outcall massage service
shall display on his or her person the valid current photograph-bearing
identification card issued to that employee by the CAMTC. A copy of
each such identification card and the person's original CAMTC certificate
shall also be displayed in an open and conspicuous place visible from
the main entry door and/or reception and waiting area of the massage
establishment. The home address of any employee need not be displayed.
(f)
Display
of Human Trafficking Notices. The massage establishment shall comply
with the requirements in California Civil Code Section 52.6 related
to the posting of information for victims of human trafficking.
(g)
Home
Occupation and Outcall-Only Businesses—Exemptions.
(1)
Where a certified massage establishment is a home occupation, and the operator has complied with the provisions of Section 19.42.010 of this code pertaining to home occupations, the provisions of subsections (a)(2), (b)(1)—(3), and (b)(6) of this section shall not apply, and the portions of the residence subject to the requirements of subsections (b) and (c) of this section shall be only those portions that are used at any time by the patron of the massage establishment.
(2)
For massage establishments that provide outcall-only services and
have no fixed location for performing massage, provisions of this
section related to businesses with fixed locations shall not apply.
Specifically, the provisions of subsections (a)(2)—(9), (b)(1)—(4),
(b)(6)—(8), (c)(2) and (7), (e)(1), and (f) of this section
shall not apply to outcall-only establishments.
(Ord. 3064-15 § 1)
(a)
The
inspector shall have the right to enter any massage establishment,
other than an establishment providing outcallonly services, during
regular business hours, without a search or inspection warrant, to
make reasonable inspection to ascertain whether there is compliance
with the provisions of this chapter. For home occupations, reasonable
inspection shall be limited to the portions of the residence open
to patrons.
(b)
The
massage establishment operator shall take immediate action to correct
each violation noted by the inspector. A reinspection will be performed
to ensure that each violation noted by the inspector has been corrected.
(Ord. 3064-15 § 1)
(a)
For
the purpose of enforcing the requirements of this chapter, all owners
and operators of the massage establishment shall be jointly and severally
responsible for the conduct of all massage establishment employees,
agents, independent contractors, or other representatives while such
persons are on the premises of the massage establishment or providing
outcall massage services on behalf of the massage establishment.
(b)
In addition to any other remedy available to the city under applicable law, a massage establishment permit may be suspended or revoked as provided in Sections 9.41.170 and 9.41.180. Upon issuance of a final order by the director or city manager to revoke the massage permit, the massage establishment shall immediately cease operation, and, if so ordered by the hearing officer, no other massage establishment shall be permitted to operate at that location by any person for a period of not less than five years ("the moratorium period"). If the operator is not also the legal owner of the real property on which the massage establishment is situated, notice of such revocation and the five-year prohibition shall be provided by the permit authority to the owner of record of the property as shown on the latest county assessment roll.
(c)
In
addition to any other remedy available to the city under applicable
law, a massage establishment permit may not be renewed or amended
unless and until all due and unpaid citations issued pursuant to this
chapter are paid in full, and all outstanding violations have been
corrected.
(d)
Notwithstanding any other provision of this chapter, where a Notice of Revocation or Suspension has been issued to the operator of a massage establishment pursuant to Section 9.41.180 of this chapter, the director shall not process or grant an application for a massage establishment permit for a new massage establishment at the same premises unless and until such Notice of Revocation or Suspension is dismissed; or a final determination is made pursuant to that section that the current operator's massage establishment permit is not or should not be revoked; or any moratorium period imposed pursuant to this chapter has expired.
(Ord. 3064-15 § 1)
All massage establishment operators shall be deemed to know
and understand the requirements and prohibitions of this chapter.
Any massage establishment permit issued pursuant to this chapter may
be suspended or revoked by the director after a hearing, where the
director finds that any of the following have occurred on even a single
occasion:
(a)
The
permittee or any person employed or retained by the massage establishment
has violated any provision of this chapter.
(b)
The
permittee 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.
(c)
The
permittee or any person employed or retained by the massage establishment
is required to register under Section 290 of the California Penal
Code.
(d)
The
permittee has been subject to a permanent injunction against the conducting
or maintaining of a nuisance pursuant to this code, or Sections 11225
through 11235 of the California Penal Code, or any similar provision
of law in any jurisdiction outside the State of California.
(e)
The
permittee or any person employed or retained by the massage establishment
has engaged in fraud or misrepresentation or has knowingly made a
misstatement of material fact while working in or for the massage
establishment.
(f)
The
permittee has continued to operate the massage establishment after
the massage establishment permit has been suspended.
(g)
Massage
has been performed on the premises of the massage establishment, with
or without the permittee's actual knowledge, by any person who is
not a duly authorized CAMTC-certified massage professional.
(h)
A
person who is not a duly authorized CAMTC-certified massage professional
has provided outcall massage services through or on behalf of the
massage establishment.
(i)
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 of the massage
establishment, 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.
(j)
The
permittee 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 the
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, or anal region.
(k)
The
permittee or any person employed or retained by the massage establishment
has engaged in sexually suggestive advertising related to massage
services on the premises of the massage establishment, including,
but not limited to displaying photographs of individuals clothed in
swim attire, or attire that is transparent, see-through or substantially
exposes the individual's undergarments, breasts, buttocks, or genitals,
describing massage services as "erotic," "sensual" or similarly sexual
in nature, listing advertisements in adult media, or describing the
appearance or age of massage providers.
(l)
If
the applicant has failed to comply with a final court order or administrative
action of an investigatory agency finding a violation of applicable
federal, state and local wage and hour laws, including, but not limited
to, the Federal Fair Labor Standards Act, the California Labor Code,
and any local minimum wage ordinance or prevailing wage requirements.
For purposes of this subsection, a final court order or administrative
action is one as to which there is no pending appeal and the time
for filing an appeal has passed.
(Ord. 3064-15 § 1; Ord. 3133-18 § 5)
(a)
The
director shall give written notice of a hearing for the revocation
or suspension of any permit granted pursuant to this chapter to the
permittee. The notice shall set forth the time and place of the hearing,
the ground or grounds upon which the hearing is based, the pertinent
code sections, and a brief statement of the factual issues in support
thereof. The notice shall be mailed, postage prepaid, addressed to
the permittee at the last known address of the permittee, or it shall
be delivered to the permittee personally, at least ten days prior
to the hearing date.
(b)
Within
ten days of the hearing the director shall render his or her decision
in writing, stating his or her findings and the action taken, if any.
The decision letter shall be mailed, postage prepaid, addressed to
the permittee at the last known address of the permittee, or it shall
be delivered to the permittee personally.
(c)
Within
ten days from the deposit of the decision letter in the mail or its
receipt by the permittee, whichever occurs first, the permittee may
appeal the decision in writing to the city manager or designee, setting
forth with particularity the ground or grounds for the appeal.
(d)
The city manager or designee shall give written notice of the hearing on the appeal not less than ten days from the date the appeal was received by the city manager or designee. The hearing shall be conducted in accordance with Section 9.41.190.
(e)
After
the hearing on the appeal, the city manager or designee may refer
the matter back to the director for a new investigation and decision,
may affirm the decision of the director, may dismiss the disciplinary
action, or may revoke or suspend the permit. The decision of the city
manager or designee upon such appeal 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.
(f)
The
notices provided to the massage establishment pursuant to this section
may also be sent to the owner of the premises where the massage establishment
is located. However, failure to provide notice to the property owner
shall not invalidate any actions taken by the city.
(Ord. 3064-15 § 1)
The following rules shall apply to any hearing required by this
chapter. All parties involved shall have the right to offer testimonial,
documentary, and tangible evidence bearing on the issues, to be represented
by counsel, and to confront and cross-examine witnesses. Any relevant
evidence may be admitted if it is the sort of evidence upon which
reasonable persons are accustomed to rely in the conduct of serious
affairs. Any hearing under this chapter may be continued for a reasonable
time for the convenience of a party or witness.
(Ord. 3064-15 § 1)
Any massage establishment operated, conducted, or maintained
contrary to the provisions of this chapter shall be, and the same
is hereby declared to be, unlawful 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 under state law.
(Ord. 3064-15 § 1)
