Chapter 5.46 PHYSICAL THERAPY

Chapter 5.46
PHYSICAL THERAPY – MASSAGE*

Sections:

5.46.010 Findings and purpose.

5.46.020 Definitions.

5.46.030 State certificate required.

5.46.040 Massage establishment owner, operator, and manager application required.

5.46.050 Massage technician application required.

5.46.060 Non-state certified massage establishment employee permit required.

5.46.070 Inspection.

5.46.080 Refiling of application upon state certificate renewal.

5.46.090 Renewal of non-state certified employee permits.

5.46.100 Inspection of business records.

5.46.110 Massage establishment operational standards.

5.46.120 Register and permit – Number of employees.

5.46.130 Notifications to city.

5.46.140 Employment of and services rendered to persons under the age of 18 years prohibited.

5.46.150 Sale or transfer of massage establishment.

5.46.160 Exempt individuals.

5.46.170 Card club massage technician – Practice requirements.

5.46.175 Violations/penalties.*

5.46.180 Immunity from prosecution.

5.46.190 Provisions nonexclusive.

5.46.200 Public nuisance.

5.46.210 Conflicting ordinance.

5.46.220 Severability.

* Prior legislation: Ords. 511 and 542.

5.46.010 Findings and purpose.

The city council finds and declares as follows:

A. The requirements and restrictions imposed by this chapter are reasonably necessary to protect the health, safety and welfare of the citizens of the city.

B. The city is authorized, by virtue of the State Constitution, Sections 16000 and 4600 et seq. of the Business and Professions Code, and Section 51030 et seq. of the Government Code, to regulate massage establishments by imposing reasonable standards relative to the skill and experience of massage operators and massage technicians and reasonable conditions on the operation of massage establishments.

C. There is a significant risk of injury to massage clients by improperly trained and/or educated massage technicians and this chapter provides reasonable safeguards against injury and economic loss.

D. There is opportunity for acts of prostitution and other unlawful sexual activity to occur in massage establishments. Courts have long recognized massage as a pervasively regulated activity and that massage establishments are often brothels in disguise. The establishment of reasonable standards for the submission of applications and the placement of restrictions on operations would serve to reduce the risk of illegal activity.

E. The restrictions and requirements contained in this chapter reduce the burdens on the police department and permit the deployment of the police personnel such that more serious crimes may be prevented and more important laws enforced.

F. The regulations and restrictions contained in this chapter tend to discourage massage establishments from degenerating into houses of prostitution and the means utilized in this chapter bear a reasonable and rational relationship to the goals sought to be achieved.

G. The provisions of this chapter are not intended to be exclusive and compliance herewith shall not excuse noncompliance with any state or local laws or regulations that are uniformly applied to other professional or personal service businesses. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002).

5.46.020 Definitions.

The following words and phrases shall, for the purpose of this chapter, be defined as follows, unless it is clearly apparent from the context that another meaning is intended:

A. “Card club massage technician” means any individual who administers massage or massage therapy services within or upon the premises of a licensed card club to patrons within a licensed card club for any consideration whatsoever.

B. “Employee” means any person, other than a massage technician, who renders any service to a massage establishment and who receives compensation directly from the massage establishment or the establishment’s agent, including an independent contractor.

C. “Massage” means any method of treating the external parts of the body for remedial, health, hygienic purpose, or relaxation purposes. “Massage” shall include, but not be limited to, treatment by means of pressure, acupressure, friction, stroking, kneading, rubbing, tapping, pounding; treatment by means of stimulating the external parts of the body with or without any mechanical or electrical apparatus or appliance, or with rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparation; treatment by means of baths, including, but not limited to, Turkish, Russian, Swedish, Japanese, vapor, and shower; and any other type of system for treating or manipulating the human body with or without the character of bath.

D. “Massage activities” mean, but are not limited to, holding oneself out as a massage technician; being employed as a massage technician; acting as a massage technician; assigned to perform massage; or giving a massage.

E. “Massage establishment” means any enterprise or establishment having a fixed place of business where any person engages in, conducts, carries on, or permits to be engaged in, conducted, or carried on as a regular function, any of the activities constituting massage as set forth in subsection (C) of this section. Any establishment engaging in or carrying on, or permitting any combination of, massage and health treatments, or massage and bathhouse, shower, hot tub, sauna, or other dry or wet heat shall also be deemed a massage establishment.

F. “Massage table” means a table specifically designed for reclining or setting for the administration of massage and which has a maximum width of four feet.

G. “Massage technician” means any individual who is certified by the state-created organization under Business and Professions Code Section 4600 et seq. and administers massage to another person for any consideration whatsoever.

H. “Operator” means any person who supervises, manages, directs, organizes, controls or in any other way is responsible for or in charge of the overall operation, conduct or activities of a massage establishment.

I. “Out-call massage” means any business not otherwise exempt from this chapter that engages in or carries on a massage at a location that is not within a massage establishment.

J. “Owner” shall mean any of the following persons:

1. The sole proprietor of a massage establishment. As used in this chapter, the term “sole proprietor” shall mean a massage establishment where the owner is the only person employed by that business or establishment to provide massage activities;

2. Any general partner of a partnership that owns or operates a massage establishment; or

3. Any person who has a 20 percent or greater ownership interest in a corporation that owns and operates a massage establishment.

K. “Permit” means the non-state certified employee permit to work in a massage establishment as required by this chapter.

L. “Person” means any individual, firm, association, partnership, corporation, joint venture, or combination of individuals.

M. “Specified anatomical areas” refers to genitals, cleft of the buttocks, perineum and anal regions.

N. “Specified criminal acts” means (1) any violation of Section 266i, 315, 316, 318, or subdivision (b) of Section 647 of the Penal Code; (2) a violation of any felony offense involving the sale of a controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 of the Health and Safety Code; (3) any offense involving the use of force or violence upon a person; (4) any offense involving tax evasion, theft, embezzlement or moral turpitude; or (5) an offense committed in another state which, if committed or attempted in this state, would be punishable as one or more of the above-mentioned offenses.

O. “State certificate” means that state certification awarded to any massage practitioner, therapist, or technician by the state-created organization created to regulate and issue massage practitioner, therapist, and technician certificates pursuant to California Business Code Section 4600 et seq.

P. “Transfer of ownership or control of a massage establishment” includes any of the following:

1. The sale, lease or sublease of the business;

2. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or

3. The establishment of a trust, gift, or other similar legal devise, which transfers ownership or control of the business, except for transfer by bequest or other operation of law upon the death of a person possessing the ownership or control. (Ord. 836 § 1, 2010; Ord. 765 § 1, 2002; Ord. 749 § 1, 2002).

5.46.030 State certificate required.

A. No person shall own, operate or establish a massage establishment; manage or supervise a massage establishment; or provide or engage in massage activities from any location in the city without having been issued a state certificate, regardless of whether such person has been issued a business permit or certificate of occupancy.

B. Notwithstanding subsection (A) of this section, a massage establishment permit or massage technician permit issued by the city prior to the enactment of this section shall be considered valid through the current expiration date of such permits or three months from the date of enactment of this section, whichever date is later. All references to the requirement of having a valid state certificate shall be deemed satisfied by a valid massage establishment or technician permit. Once such permits expire, the permittee shall be required to obtain a state certificate. (Ord. 836 § 1, 2010).

5.46.040 Massage establishment owner, operator, and manager application required.

A. Prior to owning, establishing, operating, or managing a massage establishment within the city, the prospective owner or operator or manager must first submit a completed, written, signed and verified application or renewal application on a form provided by the city manager, which shall contain:

1. The full true name of the applicant; and

2. The current residence and business address and current residence and business telephone number of the applicant; and

3. The name and address of the massage establishment for which the operator is to be employed; and

4. A true and correct copy of the applicant’s state certificate shall be provided with the application; and

5. Social Security number; and

6. A certification under penalty of perjury that the information contained in the application is true and correct; and

7. Two portrait photographs of the applicant (two-inch by two-inch minimum size), taken within 60 days immediately prior to the date of the application, clearly showing the applicant’s face; and

8. An authorization for the city, its officers, agents and employees to seek information and conduct an investigation into the truth of the statements set forth in the application and to ensure continual compliance with all applicable provisions of law.

B. All applications shall be filed with the city business license division. Each application shall be accompanied by a nonrefundable fee for filing or renewal in an amount determined by resolution of the city council, which shall be used to defray the costs of reasonable investigation into the information provided herein.

C. The fact that an applicant possesses other types of state or city permits and/or licenses does not exempt the applicant from the requirement of submitting a massage establishment application.

D. Any massage establishment requiring the submission of a massage establishment application shall also be required to obtain a business license pursuant to Chapter 5.12 BGMC. No business permit shall be issued to any applicant that has provided materially false or fraudulent statement of material fact in the application or in any report or record relevant to the application required to be filed with the police department, or other department of the city. For purposes of this section only, a duly licensed card club shall not be required to submit an application required hereunder. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002. Formerly 5.46.030).

5.46.050 Massage technician application required.

A. A massage technician shall not engage in or participate in any massage activities in the city unless the massage technician has first submitted a completed massage technician application, which shall include a written, signed and verified application or renewal application on a form provided by the city manager. An application shall be submitted no later than five business days prior to date of providing massage activities and the application shall contain:

1. The full true name of the applicant; and

2. The current residence and business address and current residence and business telephone number of the applicant; and

3. The name and address of the massage establishment for which the massage technician is to be employed; and

4. A true and correct copy of the applicant’s state certificate shall be provided with the application; and

5. Social Security number; and

6. A certification under penalty of perjury that the information contained in the application is true and correct; and

7. Two portrait photographs of the applicant (two-inch by two-inch minimum size), taken within 60 days immediately prior to the date of the application, clearly showing the applicant’s face; and

C. The fact that an applicant possesses other types of state or city permits and/or licenses does not exempt the applicant from the requirement submitting a massage technician application. (Ord. 836 § 1, 2010; Ord. 765 §§ 2, 3, 4, 2002; Ord. 749 § 1, 2002. Formerly 5.46.040).

5.46.060 Non-state certified massage establishment employee permit required.

A. Any massage establishment employee, not having a state certification, shall be required to obtain a massage establishment employee permit pursuant to this section, prior to commencing employment by submitting a completed employee permit application containing a written, signed and verified application or renewal application on a form provided by the city manager. Such application shall contain:

1. Applicant’s legal name and any other names or aliases used by the applicant;

2. Applicant’s age, date of birth, and place of birth;

3. Applicant’s current residential address and telephone number;

4. Applicant’s California driver’s license number or California identification card number;

5. Satisfactory written proof that the applicant is at least 18 years of age;

6. Applicant’s fingerprints on a form provided by and in a manner prescribed by the police department and two portrait photographs of the applicant (two-inch by two-inch minimum size), taken within the 60 days immediately prior to the date the application is filed, clearly showing the applicant’s face. Any fees for the fingerprints and photographs shall be paid by the applicant. If the city approves the permit application, the city shall retain one photograph in the application file and affix the other photograph to the permit issued to applicant;

7. A statement detailing the applicant’s employment and permit history for the five years immediately preceding the date of the filing of the application, including whether the applicant was previously licensed, permitted, or authorized to conduct business or was seeking such license, permit, or authorization to conduct business in this or any other county, city, or state, and whether the applicant has ever had such license, permit, or authorization to conduct business denied, revoked, or suspended. In the event of any such denial, revocation, or suspension, state the date, the name of the issuing or denying jurisdiction, and describe in full the reasons for the denial, revocation, or suspension;

8. Whether the applicant has ever been convicted of a specified criminal act, and, if so, the specified criminal act involved, the date, place, and nature of each conviction or plea of nolo contendere and the identity of the convicting jurisdiction, or whether the applicant is required to register under the provisions of Section 290 of the Penal Code;

9. If the application is made for the purpose of renewing a permit, the applicant shall attach a copy of the permit to be renewed;

10. For a renewal of a permit under this section, the applicant shall also indicate any changes to the application since the filing of the initial application;

11. Applicant’s authorization for the city, its employees, agents, and contractors to seek information and conduct investigations to determine the truthfulness of the statements and information set forth in the application and applicant’s qualifications for a permit;

12. An affidavit signed by applicant and notarized stating that applicant has reviewed and is familiar with the requirements set forth in this chapter.

B. All applications for a permit or renewal shall be filed with the city business license division subject to investigation by the police department. Each application shall be accompanied by a nonrefundable fee for filing or renewal in an amount determined by resolution of the city council, which shall be used to defray the costs of investigation, inspection and processing of such application.

C. The report of the police department regarding a permit application shall be issued within 45 days of filing a complete application. At the conclusion of the investigation, the results shall be indicated on the photocopy of the application, dated, signed and returned to the city business license division. A permit shall automatically be issued if a decision has not been made by the city business license division on the application for a permit within 60 days of receipt for a completed application. Any permit issued pursuant to this subsection shall be deemed conditional pending the city’s receipt of the California Department of Justice report on the fingerprints submitted by the applicant. If the fingerprint report demonstrates that the applicant has made any false, misleading or fraudulent statement of material fact in the permit application or in any report or record required to be filed with the police department, or other department of the city, the permit shall be subject to revocation pursuant to BGMC 5.46.080.

D. Following the police department’s investigation, the city business license division shall issue a permit or renewal, unless one or more of the following are found to be true:

1. The applicant has knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit or in any report or record relevant to the permit required to be filed with the police department, or other department of the city;

2. The applicant had any type of massage establishment permit or massage technician permit revoked by any public entity within two years of the date of the application;

3. The applicant is under 18 years of age;

4. The application or permit fee required by this chapter has not been paid; and

5. That the applicant has been convicted of a specified criminal act, or is required to register under the provisions of Section 290 of the Penal Code.

E. The fact that an applicant possesses other types of state or city permits and/or licenses does not exempt the applicant from the requirement of obtaining a massage technician permit. For purposes of this section only, an employee of a duly licensed card club shall not be considered a non-state certified massage establishment employee for purposes of this section.

F. Any application for a permit pursuant to this chapter is considered to be a ministerial act. Issuance or denial of the permit under this chapter is not subject to administrative appeal. The decision of the city business license division is subject to prompt judicial review by a court of competent jurisdiction in accordance with California law. (Ord. 836 § 1, 2010).

5.46.070 Inspection.

An applicant or permittee under this chapter shall permit representatives of the police department, health department, fire department, code enforcement, city manager, or other city departments or agencies to inspect any and all areas within the massage establishment, regardless of whether such area is occupied or in use, on an unscheduled basis, for the purpose of assuring compliance with the law, at any time the massage establishment is occupied or opened for business. A person who operates a massage establishment or his or her agent or employee is in violation of the provisions of this section if he/she refuses to permit such lawful inspection of the premises at any time it is occupied or opened for business. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002. Formerly 5.46.050).

5.46.080 Refiling of application upon state certificate renewal.

Any holder of a state certification as defined under this chapter shall be required to submit an application pursuant to BGMC 5.46.040 and 5.46.050, whichever applicable, within 30 days of renewing his or her state certification pursuant to California Business and Professions Code Section 4601(F). All information required under BGMC 5.46.040 and 5.46.050 shall be resubmitted to the city and updated, if applicable. The refilling of the application shall be accompanied by a nonrefundable fee equal to the cost of filing a new application (as determined by resolution of the city council) to defray the costs of processing and the reasonable investigation of the information. (Ord. 836 § 1, 2010).

5.46.090 Renewal of non-state certified employee permits.

Each permit issued under BGMC 5.46.060 shall expire one year from the date of issuance and may be renewed only by making an application as provided in this chapter. Application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the permit will not be affected. A renewal application shall contain all materials required for an initial permit, including fingerprints and recent photographs of the renewal applicant. (Ord. 836 § 1, 2010).

5.46.100 Inspection of business records.

If the city manager believes that a regular and substantial portion of a business operating within the city has the characteristics of a massage establishment, regardless of whether the business has submitted massage establishment application, then the city manager may require that the business make available for review by the city’s authorized representative, at reasonable times and places, complete records of the business’ transactions, including its sales, receipts, purchases and other expenditures. In the event such records cannot be made available within the city of Bell Gardens or within a distance of 50 miles therefrom, the owner or operator of the business is hereby required to reimburse the city for the cost of all transportation, lodging, meals, portal-to-portal travel, time and other incidental costs reasonably incurred by the city in performing said audit. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002).

5.46.110 Massage establishment operational standards.

It is unlawful for any person to commence, conduct, own, manage, operate, be in charge of, participate in or sponsor a massage establishment, which is not fully in compliance with the following operational standards:

A. Hours and Conditions of Operation.

1. No massage establishment shall operate nor shall any massage be administered in any massage establishment between the hours of 10:00 p.m. and 8:00 a.m. A massage begun any time before 10:00 p.m. must nevertheless terminate prior to 10:00 p.m. The hours of operation must be displayed in a conspicuous public place in the lobby within the massage establishment and in the front window clearly visible from the outside of the massage establishment.

2. No massage establishment may be open for business unless there is at least one massage technician on the premises at all times.

3. Patrons and visitors shall only be permitted in the massage establishment during the hours of operation.

4. The massage establishment shall be supervised during all hours of operation by the owner, operator, or manager.

B. Posting Requirements.

1. The city business license and a true copy of the state certification for each and every owner, operator, and massage technician working in the massage establishment shall be displayed in an open and conspicuous public place in the reception area of the premises.

2. A list of services available and the cost of such services shall be posted in an open and conspicuous public place in the reception area of the premises. No owner, operator, responsible managing employee, manager, or permittee in charge of or in control of the massage establishment shall permit, and no massage technician shall offer to perform, any services other than those posted.

3. A sign shall be posted outside the main entrance identifying the establishment as a massage establishment; provided, that all such signs shall comply with the sign requirements of the city.

4. The building entrance to a massage establishment shall clearly and legibly post a notice indicating that persons under 18 years of age are precluded from entering the premises. Said notice shall be constructed and conspicuously posted to the satisfaction of the community development director or his or her designee.

C. Building and Facilities.

1. Hot and cold running water under pressure shall be provided to all wash basins, bathtubs, showers, and similar equipment.

2. A clean and nonabsorbent waste container with tight-fitting covers shall be provided in each toilet room for the storing of waste matter and shall be maintained in a clean and sanitary condition.

3. Each wash basin shall be provided with soap or detergent and sanitary towels placed in permanently installed dispensers. Towels must be disposable or only used once and then laundered.

4. In those establishments where steam room or sauna baths are provided and male and female patrons are served simultaneously, separate steam rooms or sauna rooms shall be provided to each sex. Each steam room and sauna shall be clearly designated as being for a particular sex.

5. In steam rooms and rooms containing tubs or showers, the shower areas shall be finished with a smooth, hard, nonabsorbent surface to a height of not less than 70 inches above the drain inlet in accordance with the city building code. All tubs or showers shall be cleaned and disinfected as needed but not less than once a day when the premises is open. Tubs shall be cleaned and disinfected after each use.

6. Walls of toilet and bathing facilities shall be smooth, waterproof and kept in good repair.

7. All walls, ceilings, floors, pools, showers, bathtubs, wet and dry heat rooms, steam rooms, tables and all other physical facilities shall be in good repair and maintained in a clean and sanitary condition.

8. Wet and dry heat rooms, steam or vapor rooms or cabinets, showers and toilet rooms shall be thoroughly cleaned at least once each day the business is in operation. Bathtubs shall be thoroughly cleaned after each use with disinfectant approved by the county health department.

9. All building, plumbing and electrical installations shall be installed under permits issued by the city building official and such installations shall be installed in accordance with the city building codes.

10. During the operation of the massage business, a light level of no less than five foot candles shall be maintained at every point within each room or enclosure where massage services are given or administered. At least one artificial light of not less than 40 watts shall be provided in each room or enclosure of the establishment capable of being occupied by a person.

11. Massage activities must be performed in rooms with an unlocked door unless there is no staff available to ensure the security of clients and massage staff behind closed doors. All doors must have an inward viewing peep hole.

12. Adequate ventilation as required by the Uniform Building Code shall be provided for cubicles, rooms and areas provided for patron’s use, which are not serviced directly by required window or mechanical systems of ventilation.

13. Each entrance to the massage establishment, regularly used by the public for ingress or egress to such establishment, shall be visible street or highway frontages only and shall remain unlocked during business hours. Exits for fire safety purposes may be allowed where deemed necessary by the appropriate safety agency.

14. No part of the facility shall be used for sleeping or residential purposes.

D. Instruments and Equipment.

1. Disinfecting agents and sterilizing equipment sufficient to assure the cleanliness and safe condition thereof shall be provided for any instruments used in performing any massage.

2. All massages shall be performed on massage tables. No furniture designed for sleeping shall be located in rooms used for massages. Pads used on massage tables shall be covered with a durable washable plastic or other waterproof material acceptable to the county health department. Beds shall be prohibited from the premises.

3. Cleanable and nonabsorbent waste containers with tight fitting covers shall be provided for the storing of all waste matter and shall be maintained in a clean and sanitary condition.

4. Closed cabinets or containers shall be provided for the storage of laundered towels and linens. Nonabsorbent containers or laundry bags shall be provided for damp or soiled linen, and linen shall be kept therein until removed for laundering.

5. All establishments shall be so equipped, maintained and operated as to effectively control the entrance, harborage, and breeding of vermin, including flies. When flies or other vermin are present effective control measures shall be instituted for their control or elimination.

E. Linens and Coverings.

1. 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 relaundered. Heavy white paper may be substituted for sheets; provided, that such paper is used only once for each person, then discarded into a sanitary receptacle.

2. Each establishment shall provide to all patrons clean, sanitary and opaque linens or coverings capable of covering the patron’s specified anatomical areas. No common use of such coverings shall be permitted, and reuse is prohibited unless the coverings have been adequately cleaned.

3. Based upon the maximum number of patrons for which the massage establishment can render on-site, simultaneous massages, there shall be, at all times of operation, five towels for each patron, available for the personal use of the patron.

4. Based on the number of employees required to serve the maximum number of patrons for which the massage establishment can render on-site, simultaneous massages, there shall be, at all times of operation, five towels for each employee. Such towels shall be clean, freshly laundered and disinfected.

F. Record-Keeping Requirements.

1. Every person operating a massage establishment shall keep a record of the date and hour of each treatment or service, the name and address of the patron, the name of the massage technician administering such treatment or service, and a description of the treatment or service rendered. The records shall be open to inspection by city, county or state officials charged with the specific enforcement of this chapter or with the general responsibility of preventing the spread of communicable or contagious disease and maintaining the public health. The information contained in such records shall be used only to ensure and enforce compliance with this chapter or any other applicable state or federal laws and shall remain confidential. Failure to record such information or knowingly falsifying such records may be grounds for suspension or revocation of a business permit. The chief of police or that official’s designee shall be permitted to periodically inspect the treatment and service records to ensure compliance with this chapter. The records shall be maintained for a period of four years.

2. The massage business operator shall prepare or cause to be prepared a written record of the cleaning and disinfecting of areas used for giving massage services. Entries shall be made into the record within five minutes of the completion of the cleaning or disinfecting event being recorded.

G. Employees/Massage Technicians.

1. All employees, including massage technicians, at all times while on the premises of the massage establishment, shall be clean and shall wear clean, nontransparent outer garments covering the body from knee to neck. The use of such garments shall be restricted to the massage establishment.

2. Separate dressing rooms for each sex, equipped with individual lockers for each employee, shall be available on the premises.

a. No massage establishment operator or massage technician shall, while on the premises of a massage establishment and in the presence of a patron or customer, appear in such attire so as to expose specified anatomical areas.

b. No massage technician, while performing any task or service associated with the massage business, shall be present in any room with another person, unless the person’s specified anatomical areas are fully covered.

H. Prohibited Conduct.

1. No owner, operator, responsible managing employee, manager or permittee in charge of or in control of a massage establishment shall permit, during the course of any service or task associated with the operation of a massage establishment, any person to massage or intentionally touch or make physical contact with specified anatomical areas of another person, nor shall any employee, agent, or massage technician massage, intentionally touch, or make physical contact with specified anatomical areas of another person.

2. No person other than the person receiving a massage and the administering massage technician may be within a room in a massage establishment wherein a massage is being given.

3. During hours of operation, no person other than a valid holder of a state certificate or non-state certified employee permit under this chapter or a customer for whom the information required pursuant to subsection (F)(1) of this section has been recorded shall be allowed beyond the front lobby of the massage establishment, which shall be located directly inside the front door entrance of the massage establishment.

4. No person shall enter, be, or remain in any part of the massage establishment while in the possession of, consuming, or using alcoholic beverages or drugs, except pursuant to a prescription for such drugs. The owner, operator, responsible managing employee, manager or permittee shall not permit any person in violation of this subsection to enter or remain upon the premises.

5. No person shall enter, be, or remain in any part of the massage establishment while in the possession of a condom, nor shall the storage of condoms be permitted within the massage establishment.

6. The sale or serving of food or beverage or the conducting of non-massage business on the premises of the massage establishment is prohibited.

7. No massage establishment may operate as a school of massage or use the same facilities as that of a school of massage.

8. Out-call massage services or massage services not rendered at a permitted massage establishment are prohibited.

9. No invasive procedures shall be performed on any patron. Invasive procedures include, but are not limited to: (a) application of electricity which contracts the muscle, (b) application of topical lotions, creams, or other substances which affect living tissue, such as chemical peel preparations or bleaches, (c) penetration of the skin by metal needles, (d) abrasion of the skin below the non-living, epidermal layers, (e) removal of skin by means of any razor-edged instrument or other device or tool, and (f) any needle-like instrument which is used for the purpose of extracting skin blemishes and other similar procedures. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002).

5.46.120 Register and permit – Number of employees.

The operator, owner or responsible managing agent of a massage establishment shall maintain a complete and current register of the names, residence addresses, and state certification numbers (if applicable) of all massage technicians and persons employed on the premises and the name and residence address of the operator or managing employee principally in charge of the operation of the massage establishment. Such register shall be kept on the premises of the massage establishment and shall be available for inspection during regular business hours by any police officer or health officer or other official charged with enforcement of this chapter. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002).

5.46.130 Notifications to city.

The owner or operator of each massage establishment shall provide the community development director, or his or her designee, in writing, of the following for each massage technician whose services are utilized by the massage establishment (1) no later than five business days prior to the commencement of services, and (2) within five business days of the termination of employment or discontinuance of massage services:

A. Name;

B. State certification number;

C. Date of hiring or termination date;

D. Name and location of massage establishment where employed;

E. A true and correct copy of the state certification; and

F. Color photograph of the state certificate holder. (Ord. 836 § 1, 2010).

5.46.140 Employment of and services rendered to persons under the age of 18 years prohibited.

A. It shall be unlawful for any owner, operator, or other person in charge of any massage establishment to employ, or provide any massage services set forth in this chapter to any person who is not at least 18 years of age.

B. It shall be unlawful for any owner, operator or other person in charge of any massage establishment to permit to enter, or remain within the massage establishment, any person who is not at least 18 years of age. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002. Formerly 5.46.130).

5.46.150 Sale or transfer of massage establishment.

Upon sale or transfer of ownership or control of a massage establishment, a new application shall be made by any person, firm or entity desiring to own or operate the massage establishment. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002. Formerly 5.46.140).

5.46.160 Exempt individuals.

The requirements of this chapter do not apply to the following while engaged in performing the duties of their respective professions:

A. Physicians, surgeons, chiropractors, osteopaths, acupuncturists or physical therapists who are licensed to practice their respective professions in the state of California.

B. A registered nurse or licensed vocational nurse, licensed to practice under the laws of the state of California, working on the premises of, or under the supervision of, a state-licensed physician, surgeon, chiropractor, or osteopath. Practical nurses or other persons that do not meet the requisite qualifications for a massage technician, or any other person not otherwise licensed by the state of California, whether or not employed by physicians, surgeons, chiropractors, osteopaths, acupuncturists, or physical therapists, may not provide massage or act as a massage technician.

C. Employees of hospitals, nursing homes, sanatoriums, or other health care facilities duly licensed by the state of California, while working on the premises of such state-licensed facilities.

D. A trainer employed by any amateur, semiprofessional or professional athlete or athletic team.

E. Barbers, beauticians, or manicurists who are duly licensed by the state of California while engaging in practices within the scope of such license, except that this exemption applies solely for the massaging of the neck, face, and/or scalp of the customer or client of said barber or beautician or, in the case of a licensed manicurist, the massaging of the forearm, hands, calves, and/or feet.

F. Accredited high schools, junior colleges, and colleges or universities whose coaches and trainers are acting within the scope of their employment.

Any person claiming such exemption shall furnish satisfactory evidence that that person is entitled to such exemption, including, if applicable, a citation to the particular provision of the Business and Professions Code upon which that person relies. (Ord. 836 § 1, 2010; Ord. 765 § 5, 2002; Ord. 749 § 1, 2002. Formerly 5.46.150).

5.46.170 Card club massage technician – Practice requirements.

A. Any person performing massage activities as a card club technician may only provide massage on or about the following areas:

1. Head;

2. Neck;

3. Shoulders;

4. Arms;

5. Hands; and

6. Back.

B. During any massage and/or massage therapy services, both the card club technician and his/her client shall remain fully clothed.

C. All massage and/or massage therapy services shall be performed on the gaming floor in areas accessible to the public, within public view, and during regular business hours of the card club. No such services shall be provided in any public rest room(s). (Ord. 836 § 1, 2010).

5.46.175 Violations/penalties.*

A. Any firm, corporation or person, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this chapter, shall be guilty of a misdemeanor, and any conviction thereof shall be punishable by a fine of no less than $1,000 or by imprisonment for no less than six months, or by both such fine and imprisonment.

B. Nothing herein shall prevent or restrict the city from taking such other lawful action in any court of competent jurisdiction as is necessary to prevent or remedy any violation or noncompliance. Such other lawful actions shall include, but shall not be limited to, an equitable action for injunctive relief or an action at law for damages. If an injunction must be sought, attorney’s fees and costs will be assessed at the discretion of the court against the party subject to said injunction.

C. Nothing in this section shall be construed to prohibit the city from prosecuting any violation of this chapter by means of code enforcement procedures established pursuant to the laws of the state of California and the city of Bell Gardens.

D. Any violation of the provisions of this chapter shall constitute a separate offense for each and every day during which such violation is committed or continued.

E. Any massage establishment shall be subject to the following restrictions:

1. A person commits a misdemeanor if he or she operates or causes to be operated a massage establishment, or provides massage activities without complying with the application requirements or the requirements set forth in this chapter.

2. A person commits a misdemeanor if he or she operates or causes to be operated a massage establishment that advertises the presentation of any activity prohibited by any applicable state statute or local ordinance.

3. A person commits a misdemeanor if he or she operates or causes to be operated a massage establishment and allows such business to remain open for business, or to permit any employee to solicit or provide massage services, between the hours of 10:00 p.m. and 8:00 a.m.

4. A person commits a misdemeanor if, working as an employee or a massage technician of a massage establishment said person engages in a service, or solicits a service, between the hours of 10:00 p.m. and 8:00 a.m.

5. A person commits a misdemeanor if he or she operates or causes to be operated a massage establishment, regardless of whether or not a business license has been issued for said business under this title, and said person knows that or should know that the massage establishment does not meet the requirements of this chapter. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002. Formerly 5.46.160).

* Code reviser’s note: Ord. 836 originally added this section as BGMC 5.46.170. It has been editorially renumbered to avoid duplication of numbering.

5.46.180 Immunity from prosecution.

The city and its designee, the police department and all other departments and agencies and all other city officers, agents and employees charged with enforcement of state and local laws and codes shall be immune from civil or criminal prosecution for reasonably and in good faith entering upon a massage establishment while acting within the scope of authority, conferred by this chapter. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002).

5.46.190 Provisions nonexclusive.

The provisions set forth in this chapter are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other ordinances, statutes, or regulations pertaining to the operation of massage establishments as adopted by the city council of the city of Bell Gardens, the county of Los Angeles, or the state of California. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002).

5.46.200 Public nuisance.

In addition to the penalties above, any massage establishment which is operating in violation of this chapter or any provision thereof is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002).

5.46.210 Conflicting ordinance.

If any city ordinance or regulation or any part thereof is found in conflict with the provisions of this chapter, the provisions of this chapter shall apply. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002).

5.46.220 Severability.

If any provision of this chapter is held to be invalid, void, or unconstitutional, it is the intent of the city council that such invalidated portion be severable from the remainder and that the remainder be given full force and effect. (Ord. 836 § 1, 2010; Ord. 749 § 1, 2002).