This chapter may be referred to as the El Cajon massage establishment ordinance.
(Ord. 5072 § 3, 2018)
It is the purpose and intent of this chapter to provide for the orderly regulation of the massage establishment business in the city.
This chapter shall be construed liberally in order to effectuate its purposes. Unless otherwise specifically prescribed in this chapter, the following provisions shall govern its interpretation and construction:
A.
No license or permit holder shall have any recourse whatsoever against the city for any loss, cost, expense or damage arising out of any provision or requirement of this chapter or the enforcement thereof.
B.
This chapter does not relieve any licensee or permit holder of any requirement of any ordinance, rule, regulation or specification of the city.
(Ord. 5072 § 3, 2018)
Whenever in this chapter the following words or phrases are used they shall mean:
means any washing or soaking of the human body, including, but not limited to, Turkish, Russian, Swedish, vapor, sweat, electric, salt, shower, or sponge baths.
means the city manager of the city, and any officer or employee of the city appointed by the city manager to act as the city manager's agent.
means human genitalia, pubic region, anus, perineum, and female breasts below a point immediately above the top of the areola.
means the Department of Public Health of the County of San Diego.
means nonmedical health care therapists who use a massage specialty and therapeutic approach in caring for clients, and who present to the finance department proof of satisfactory completion of one thousand hours of instruction in such specialty or therapeutic approach from a school with a state-accredited curriculum, and proof of membership in a state or nationally chartered organization devoted to the specialty or therapeutic approach. The practice of such health care therapists may include other services such as nutritional assistance or counseling, as long as all activities are directed toward health care.
means any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the human body with the hand or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances, or with or without supplementary aids such as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointments, or other similar preparations commonly used in this practice.
means a business establishment having a fixed location wherein any individual, firm, association, partnership, corporation, or combination of individuals, engages in, conducts, carries on or permits to be engaged in, conducted or carried on any bath or massage as defined in this chapter for any form of consideration.
means any person, male or female, who gives or administers, or offers to give or administer, to another person, for any form of consideration, a massage or bath.
means a massage or bath given or administered for any form of consideration at a location other than a massage establishment.
means any school or institution of learning which has been approved pursuant to section 94311 of the Education Code of the state, and which has for its purpose and is competent to teach a course of instruction of no less than two hundred hours, to be given in not less than three calendar months, instructing in the theory, practice, ethics, and application of massage. The school must furnish, upon successful completion of the course of instruction, a degree, pursuant to section 94310 of the Education Code of the state. The course of instruction must be approved by the Superintendent of the Council for Private Postsecondary Educational Institutions of the Department of Education, pursuant to section 94311 of the Education Code of the state. Schools offering correspondence courses not requiring attendance at classes are excluded from this definition.
means the license required by Chapter 5.16 of this code.
means the permit required by Chapter 5.20 of this code.
(Ord. 5072 § 3, 2018)
It is unlawful for any person to engage in, conduct, carry on, or allow to be engaged in, conducted, or carried on, in or upon any premises within the city, a massage establishment, unless a business license pursuant to Chapters 5.04 and 5.08 of this code, and a special operation license pursuant to Chapter 5.16 of this code have been duly issued for such an establishment.
(Ord. 5072 § 3, 2018)
It is unlawful for any person to act as a massage technician without a work permit.
(Ord. 5072 § 3, 2018)
Notwithstanding any other provisions of this code, any applicant for a work permit to act as a massage technician shall submit to the city the following information:
A.
The full name and present address of applicant;
B.
The previous addresses of applicant for a period of five years immediately prior to the date of the application, and the dates of residence at each;
C.
Written statements of at least five persons over the age of eighteen years, together with their names, addresses, and telephone numbers where they may be conveniently contacted, stating that the applicant is of good moral character;
D.
Written proof that the applicant is over the age of eighteen years;
E.
Applicant's height, weight, color of eyes, and color of hair;
F.
Three portrait photographs of the applicant, at least two inches by two inches in size, taken within the last six months;
G.
The business, occupation or employment history of the applicant for the five years immediately preceding the date of the application;
H.
All arrests or convictions of the applicant on a criminal matter, except minor traffic offenses, with an explanation of the circumstances thereof;
I.
Written proof that the applicant has received a certificate from a medical doctor licensed to practice in the state of California, stating that the applicant has within the thirty days immediately preceding the date of the application been examined and found to be free of any contagious or communicable disease;
J.
Written proof that the applicant has received a degree in massage from a recognized school, or in lieu of a degree, that the applicant has successfully completed an examination prepared and conducted by the County of San Diego Department of Health Services, consisting of both a written test and a practical demonstration, testing the competency and ability of the applicant to engage in the occupation of massage, and which requires the applicant to demonstrate a basic knowledge of anatomy, physiology, hygiene, and both manual and mechanical massage;
K.
The license or permit history of the applicant, relating to the operation of a massage establishment or employment as a massage technician, including whether the applicant has had such license or permit suspended or revoked, the reason therefor, and the business, occupation, or employment of the applicant subsequent to such suspension or revocation;
L.
The massage establishment, if any, at which the applicant expects to be employed;
M.
The chief of police may require the applicant to furnish fingerprints when needed for the purpose of establishing identification; and
N.
Such other identification and information as the city manager may require in order to discover the truth of the matters specified above.
(Ord. 5072 § 3, 2018)
A work permit to act as a massage technician shall be issued if all other provisions of this code are complied with by the applicant, unless one or more of the following conditions is found to exist:
B.
The applicant has knowingly made a false material statement in the applications required.
C.
The applicant has within the five years immediately preceding the date of the application been convicted in a court of competent jurisdiction of any of the following offenses: sections 266i, 315, 316, 318, or subdivision (b) of section 647 of the California Penal Code; an offense which requires registration as a sex offender with the chief of police under Penal Code section 290; any felony offense involving the sale of a controlled substance specified in sections 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code; an offense in another state which, if committed in this state, would have been punishable as one or more of the heretofore mentioned offenses; an offense involving the use of force or violence upon the person of another; an offense involving theft, embezzlement, or moral turpitude; or any violation of a statute, ordinance, or regulation relating to a massage establishment, any substantially similar business operation, or the occupation of massage technician. For the purpose of this section, a plea of nolo contendere shall be deemed a conviction.
D.
The applicant is not at least 18 years of age.
E.
The applicant held a license or permit to act as a massage technician, and the license or permit was suspended for one year or more, or revoked within the three years immediately preceding the date of applying for the work permit; except that this subsection shall not be grounds for denial if the applicant can show a material change in circumstances, since the revocation or suspension, which eliminates the grounds for the suspension or revocation.
(Ord. 5072 § 3, 2018)
Any person desiring to obtain a work permit to act as a massage technician shall submit an application as provided in this code. A work permit to act as a massage technician does not authorize the operation of a massage establishment. Any person obtaining a work permit to act as a massage technician who desires to operate a massage establishment must separately apply for the licenses therefor.
(Ord. 5072 § 3, 2018)
Notwithstanding any other provisions of this code, any applicant for a special operation license for the operation of a massage establishment shall submit to the department of finance of the city the following information:
A.
The full name and present address of applicant;
B.
If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter, together with the state and date of incorporation, and names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of the corporation. If the applicant is a partnership, the application shall set forth the names and residence addresses of each of the partners, including limited partners. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership as filed with the county clerk. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporate applicants shall apply;
C.
The previous addresses of applicant for a period of five years immediately prior to the date of the application, and the dates of residence at each;
D.
If the applicant is a natural person:
1.
Written statements of at least five persons over the age of eighteen years, together with their names, addresses and telephone numbers where they may be conveniently contacted, stating that the applicant is of good moral character;
2.
Written proof that the applicant is at least eighteen years of age;
3.
Applicant's height, weight, color of eyes, and color of hair;
4.
Three portrait photographs of the applicant, at least two inches by two inches in size, taken within the last six months;
5.
The business, occupation, or employment history of the applicant for the five years immediately preceding the date of the application;
6.
All arrests or convictions of the applicant on a criminal matter, except minor traffic offenses, with an explanation of the circumstances thereof;
7.
A certificate from a medical doctor licensed to practice in the state of California, stating that the applicant has within the thirty days immediately preceding the date of the application been examined and found to be free of any contagious or communicable disease;
8.
Written proof that the applicant has received a degree in massage from a recognized school. In lieu of proof of a degree, the applicant must furnish proof of successful completion of an examination prepared and conducted by the County of San Diego Department of Health Services, consisting of both a written test and a practical demonstration, testing the competency and ability of the applicant to engage in the occupation of massage, and which requires the applicant to demonstrate a basic knowledge of anatomy, physiology, hygiene, and both manual and mechanical massage;
E.
The license or permit history of the applicant, relating to the operation of a massage establishment or employment as a massage technician, including whether the applicant has had such license or permit suspended or revoked, the reason therefor, and the business, occupation, or employment of the applicant subsequent to such suspension or revocation;
F.
The names or designations under which the massage establishment will do business; and
G.
Such other identification and information as the city manager may require in order to discover the truth of the matters specified above.
(Ord. 5072 § 3, 2018)
If the applicant for a special operation license for the operation of a massage establishment is a corporation or partnership, the applicant shall designate one of its officers or partners to act as its responsible managing officer. The responsible managing officer shall complete and sign the license application required for the operation of a massage establishment.
(Ord. 5072 § 3, 2018)
A special operation license for the operation of a massage establishment shall be issued if all other provisions of this code are complied with by the applicant, unless one or more of the following conditions is found to exist:
B.
The applicant has knowingly made a false material statement in the applications required.
C.
The applicant, if an individual, or in the case of an applicant which is a corporation or partnership, any of its officers, directors, holders of five percent or more of the corporation's stock, or partners, has within five years immediately preceding the date of the filing of the application, been convicted in a court of competent jurisdiction of any of the following offenses: sections 266i, 315, 316, 318, or subdivision (b) of section 647 of the California Penal Code; an offense which requires registration as a sex offender with the chief of police under Penal Code section 290; any felony offense involving the sale of a controlled substance specified in sections 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code; an offense in another state which, if committed in this state, would have been punishable as one or more of the heretofore mentioned offenses; an offense involving the use of force or violence upon the person of another; an offense involving theft, embezzlement, or moral turpitude; or any violation of a statute, ordinance, or regulation relating to a massage establishment or a substantially similar business operation.
D.
The massage establishment as proposed by the applicant does not comply with all applicable laws, including, but not limited to, health, zoning, fire, and safety requirements.
E.
The applicant is not at least eighteen years of age.
F.
The applicant held a license or permit in connection with the operation of a massage establishment, escort service, rap establishment, nude photo studio, or substantially similar type of business, or held a license or permit to act as a massage technician, and the license or permit was suspended for one year or more, or revoked, within the three years immediately preceding the date of applying for the license required for the operation of a massage establishment; except that this subsection shall not be grounds for denial if the applicant can show a material change in circumstances since the revocation or suspension which eliminates the grounds for the revocation or suspension.
(Ord. 5072 § 3, 2018)
All massage establishments operating pursuant to this code must meet each and all of the following requirements:
A.
Each person acting or employed as a massage technician shall have a valid work permit;
B.
Massage establishment operations may be carried on, and the premises may be open, only between the hours of 7:00 a.m. and 10:30 p.m. each day;
C.
A list of services available and the cost of such services shall be posted in an open and conspicuous place on the premises. Each service shall be described in readily understandable language. No other services may be performed, or offered to be performed, on the premises;
D.
The massage establishment's special operation license and a copy of the work permit of every massage technician employed by or working in the massage establishment shall be posted in an open and conspicuous place on the premises;
E.
A minimum of one toilet and wash basin shall be provided for the patrons in every massage establishment. Hot and cold running water shall be provided to all wash basins, bathtubs, showers, or similar equipment. Each wash basin shall be provided with soap or hand detergent, and sanitary towels placed in permanently installed dispensers. A trash receptacle shall be provided in each bathroom;
F.
Clean and sanitary towels, sheets, and linens shall be available for the use of each patron receiving massage services. Towels, sheets and linens may only be used once, by only one person, before being laundered. Re-use is allowed only after laundering. Heavy white paper may be substituted for sheets, provided that it is used only once, for only one person, and then discarded into a sanitary receptacle;
G.
Any instruments used in performing massage shall be maintained in a clean, sanitary and safe condition by means of disinfecting agents and sterilizing equipment;
H.
Pads used on massage tables shall be covered in an adequate manner with durable washable plastic or other waterproof material;
I.
Clean, sanitary, and opaque clothing shall be provided to all patrons, capable of covering the patron's designated body parts. The clothing may be reused only after being laundered;
J.
No owner, operator, manager, or other person in charge or in control of a massage establishment shall permit a massage to be given or administered unless the patron's designated body parts are covered during the entire massage by the clothing specified in subsection I of this section;
K.
Except for bathrooms or dressing rooms providing complete visual privacy, no owner, operator, manager, or other person in charge or in control of a massage establishment shall permit any person in the massage establishment to expose their designated body parts;
L.
No owner, operator, manager, or other person in charge or in control of a massage establishment shall permit any massage technician to be 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 clothed from a point not exceeding four inches above the center of the kneecap to the base of the neck. The clothing shall be of an opaque material and shall be maintained in a clean and sanitary condition;
M.
No owner, operator, manager, or other person in charge or in control of a massage establishment shall permit any massage technician to massage or intentionally touch the designated body parts of another person while on the premises.
(Ord. 5072 § 3, 2018)
It shall be unlawful for any owner, operator, manager, or other person in charge or in control of a massage establishment to employ, or permit any person to act as a massage technician, who is not in possession of a valid, unrevoked work permit issued for such purpose.
(Ord. 5072 § 3, 2018)
Each person operating a massage establishment pursuant to this code shall, for a period of ninety days following the issuance of the special operation license required by this code, maintain a written record of the date and hour of each massage service provided, the fee charged, and the name of the massage technician providing the service. The record shall be open to inspection by officials of the city charged with the enforcement of this chapter, and only for the purpose of enforcing this chapter. The information secured as a result of such inspection shall be confidential. Any willful unauthorized use or disclosure of such information by an officer or employee of the city shall constitute a misdemeanor, and such officer or employee shall be subject to the penalty provisions of section 5.40.230 of this chapter.
(Ord. 5072 § 3, 2018)
The health department and the officials of the city charged with the enforcement of this chapter shall have the authority, as otherwise provided for by law, to enter a massage establishment during regular business hours for the purpose of making reasonable inspections to ensure compliance with building, fire, electrical, plumbing, and health regulations, in addition to the provisions of this chapter. This section shall not be construed so as to restrict or limit the authority, already possessed under the laws, of an agency to enter or inspect premises. The costs and expenses of inspections by the health department shall be paid by the owner of the massage establishment examined.
(Ord. 5072 § 3, 2018)
It is unlawful, on the premises of a massage establishment, to:
A.
Sell or serve food or beverage; or
B.
Conduct any business other than a massage establishment.
In the event that the premises possesses or is qualified to possess a certificate of occupancy issued by the city, then the prohibitions of this section shall only apply to the portion of the premises devoted to the conduct of massage establishment business. |
(Ord. 5072 § 3, 2018)
A.
Massage establishments shall be located pursuant to the following minimum proximity requirements:
B.
Distance, without regard to intervening structures shall be:
1.
A straight line measured from the closest exterior structural wall of any massage establishment to any other massage establishment, or adult entertainment establishment as defined in section 17.90.040.
2.
A straight line measured from the closest exterior structural wall of any massage establishment and to the closest property line of a church, courthouse, public playground/park/recreation area, school, or residential zone.
(Ord. 5072 § 3, 2018)
No person licensed to operate a massage establishment shall conduct massage establishment business under any name or designation not specified in the application required by section 5.40.070.
(Ord. 5072 § 3, 2018)
A change of location of a licensed massage establishment may be approved by the city manager, provided all applicable provisions of this code are complied with, and a change of location fee of twenty-five dollars to defray in part the costs of investigation and report has been paid to the city.
(Ord. 5072 § 3, 2018)
Upon the sale or transfer of a thirty percent or more interest in a massage establishment, the special operation license required by this code shall be null and void.
(Ord. 5072 § 3, 2018)
It is unlawful for any person to engage in, conduct, carry on, or permit to be engaged in, conducted, or carried on, the business of massage 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 work permit from giving or administering massage within hospitals, convalescent centers, rest homes, or the private home of a patron.
(Ord. 5072 § 3, 2018)
The provisions of this chapter shall be applicable to all persons and businesses described herein, whether established before or after the effective date of this chapter.
(Ord. 5072 § 3, 2018)
A.
Exempted Individuals. This chapter shall not apply to the following classes of individuals and no permit shall be required of such persons while engaged in the performance of the duties of their respective professions; nor shall a license be required for the establishment at which a massage is administered or under the control and direction of such persons:
1.
Physicians, surgeons, chiropractors, osteopaths, acupuncturist, or physical therapists who are duly licensed to practice their respective professions in the State of California, while engaging in practices within the scope of their license;
2.
Nurses who are registered as such under the laws of the State of California, while engaging in practices within the scope of their license;
3.
Barbers and beauticians who are duly licensed under the laws of the State of California, while engaging in practices within the scope of their license;
4.
Trainers of any amateur, semiprofessional or professional athlete or athletic team;
5.
Holistic health professionals as defined by section 5.40.030(F) of this chapter;
6.
All individuals who use a massage specialty and therapeutic approach in caring for clients while under the "control and direction" of any of the exempted classes of individuals as listed above in sections 1 through 5 must have a valid work permit and comply with all the requirements of section 5.40.052.
B.
Exempted Entities.
1.
An exempt entity may commence, conduct, own, manage, operate, be in charge of, participate in, or sponsor a massage establishment without having a special business license and without complying with the regulations of other sections of this chapter, so long as all massages that are part of the entity's massage business comply with each of the following requirements:
a.
The individual who gives or administers, or offers to give or administer, the massage, is either exempt from the requirements of this chapter or holds a valid work permit;
b.
The massage is given or administered under the control and direction of the exempted entity within the scope of the exempted entity's category;
c.
The massage is given or administered on the site of the exempted entity; and
d.
No person involved in the activities of the entity has been convicted of a crime within five years which would allow the city to deny an application for a special operation license or business license as required by this chapter.
2.
Exempt Entities. So long as the requirements of subsection(B)(1) are being met, an entity within one or more of the following categories qualifies as exempt:
a.
An amateur, semiprofessional, or professional athletic organization where massages are given to athletes only as part of the entity's athletic program.
b.
A hospital, nursing home, sanitarium, or other health care facility duly licensed by the state of California where massages are given only within the scope of the entity's state or federal licenses.
c.
An accredited high school, junior college, or college where massages are given to the entity's students within the scope of the entity's educational program.
d.
A business which provides health and physical fitness facilities and services and which:
i.
Does not have more than five percent of its floor area designed, set aside, or used as a site for the giving or administering of massages; and
ii.
Did not, during the twelve months prior to the then current calendar year, receive more than twenty percent of its gross revenues from massage related activities.
This section shall not be construed to allow any nurse or other person not licensed by the Medical Practice Act of the code of the state to give or administer a massage, for any form of consideration, without a work permit. |
(Ord. 5072 § 3, 2018)
Should any person holding a special operation license issued pursuant to this chapter violate, or cause to be violated, any provision of this chapter or the provisions of any other ordinance or law relating to or regulating massage establishments the city manager may, upon recommendation by the chief of police and in addition to other penalties provided by ordinance, suspend or revoke the license. Subject to section 5.40.215, the action of the city manager will be final ten calendar days after the date of decision unless a licensee makes a written request for a hearing pursuant to section 5.12.035.
(Ord. 5072 § 3, 2018)
If the city manager suspends or revokes a special operations license pursuant to section 5.40.210, (s)he may expedite a license revocation or suspension if, in light of all circumstances, there is a substantial threat to public health, safety, or welfare, and the licensee is provided not less than three days' notice of a hearing pursuant to section 5.12.055.
(Ord. 5072 § 3, 2018)
Any business which is established or maintained in violation of this chapter is deemed to be a public nuisance and may be abated in accordance with Chapter 1.16 of this code.
(Ord. 5072 § 3, 2018)
Any person, firm, or corporation violating any of the provisions of this chapter shall be deemed guilty of a misdemeanor and shall be subject to the provisions of the general penalty clause as set forth in section 1.24.010 of this code.
(Ord. 5072 § 3, 2018)