Chapter 9.27
MASSAGE ESTABLISHMENTS AND THERAPISTS
Sections:
9.27.040 Massage therapist and massage practitioner registration.
9.27.050 Massage establishment permits.
9.27.070 Health and safety requirements.
9.27.100 Department coordination with CAMTC.
9.27.110 Property owner responsibility.
9.27.130 Report to city council.
9.27.140 Penalties for violation.
9.27.010 Purpose--Intent.
The city recognizes that massage is a valid professional field offering the public health and therapeutic services. It is the purpose and intent of this chapter to provide for the orderly regulation of massage therapists and massage establishments, in the interest of the public health, safety, and welfare. The city wishes both to recognize the practice of massage as a valid professional field and to discourage prostitution and other unlawful activity which otherwise may become associated with some massage establishments. It is not the intent of this chapter to punish legitimate massage therapists, massage practitioners and establishments.
This chapter relies upon the state certification process of the California Massage Therapy Council under California Business and Professions Code Section 4600 et seq. In addition, this chapter provides certain minimum standards for the operation of massage establishments, their managing employees, and massage therapists and practitioners.
This chapter is adopted under the authority of Government Code Sections 51030 through 51034, Government Code Section 37101, Business and Professions Code Section 16000, and California Constitution Article XI, Section 7. (Ord. 15-06 §1(part), 2015).
9.27.020 Findings.
The city council finds and declares as follows:
A. The permit requirements and restrictions imposed by this chapter are reasonably necessary to protect the health, safety and welfare of the citizens of the city.
B. Massage establishments have been found to present opportunities for acts of prostitution and other unlawful activity, and in fact the department of public safety has made several arrests leading to convictions for prostitution in massage establishments located within the city.
C. The California legislature and the courts have long recognized the necessity of imposing reasonable regulations and standards for the operation of massage establishments, including but not limited to minimum educational and experience requirements, passage of a practical examination of competence, sanitary conditions, hours of operation, and other operational regulations designed to minimize opportunities for illegal activities and to ensure the protection of the health, safety and welfare of citizens.
D. Some establishments, seeking to avoid regulations applicable to massage establishments, attempt to characterize or advertise themselves as "relaxation" or feature other services, including, but not limited to, tanning, hot towel wraps, steam baths, or saunas. Such establishments are considered to be similarly susceptible to opportunities for prostitution and other illegal activities, and are therefore regulated pursuant to this chapter.
E. There is a significant risk of injury to clients of massage establishments by improperly trained and/or educated massage therapists.
F. The presence of establishments known or reputed to be places of prostitution or other illegal activity can have an adverse impact on surrounding properties and result in blight, foster further illegal activities, and generally become a public nuisance.
G. The costs of investigation, surveillance and prosecution of criminal activities in or at massage establishments, both in terms of requirements for specialized training and operations, are extraordinary.
H. Effective investigation, enforcement and prosecution of prostitution and other illegal activities in or at massage establishments often require a disproportionate diversion of public safety and law enforcement resources not only from within the city, but also from other jurisdictions.
I. Minimum hours of training and experience, restrictions on advertising, and standards for professional conduct contained in this chapter are consistent with recommended standards promulgated by nationally recognized trade organizations for massage therapists. (Ord. 15-06 §1(part), 2015).
9.27.030 Definitions.
A. "California Massage Therapy Council" or "CAMTC" means the California Massage Therapy Council created under Business and Professions Code Section 4602.
B. "Certified massage practitioner" or "practitioner" means a person who is currently certified as a massage practitioner by the CAMTC pursuant to Business and Professions Code Section 4604.2. A certified massage practitioner who is an independent contractor is one who works at a massage establishment (or has an outcall massage service), but is not a salaried employee and does not share a percentage of massage proceeds with a massage establishment.
C. "Certified massage therapist" or "therapist" means a person who is currently certified as a massage therapist by the CAMTC pursuant to Business and Professions Code Section 4604. A certified massage therapist who is an independent contractor is one who works at a massage establishment (or has an outcall massage service), but is not a salaried employee and does not share a percentage of massage therapy proceeds with a massage establishment.
D. "Chief" or "chief of police" means the chief of police of the city of Kerman or his/her designee.
E. "Department" means the police department of the city of Kerman.
F. "Massage" or "bodywork" means the application of various techniques to the muscular structure and soft tissues of the human body as defined in Business and Professions Code Section 4601(e). Application of massage and bodywork techniques may include, but is not limited to, stroking, kneading, tapping, compression, vibration, rocking, friction, pressure, and similar techniques. Examples of massage include Swedish massage, sports massage, shiatsu, polarity therapy, rolfing, hellerwork and reflexology. "Massage" and "bodywork" have the same meaning.
G. "Massage establishment" means a studio or place where certified massage therapists or certified massage practitioners practice massage as provided in Business and Professions Code Section 4601(f). The following are not considered massage establishments under this chapter: a hospital, nursing home, sanitarium, physiotherapy establishment, office of a licensed medical professional, or other state-licensed physical or mental health professional or facility; nor a personal fitness training center, gymnasium, athletic facility, health club, beauty shop, or day spa and salon when the giving of massage is an incidental function of the business, constituting ten percent or less of the business.
H. "Outcall massage service" means a business which provides massage at a location designated by the client or massage practitioner or therapist, other than at a massage establishment.
I. "Owner" means an individual natural person, firm, corporation, association, organization, partnership, limited liability company, business trust, corporation or company that owns, has an equity interest in, or shares a percentage of massage therapy proceeds with, a massage establishment. (Ord. 15-06 §1(part), 2015).
9.27.040 Massage therapist and massage practitioner registration.
A. Massage Therapist or Massage Practitioner. No person may practice massage in the city who is not a certified massage therapist or certified massage practitioner as defined in the definitions above.
B. All Therapists and Practitioners. A certified massage therapist or certified massage practitioner providing or offering massage in the city must:
1. Work at a city-permitted massage establishment as an employee or independent contractor; or
2. Obtain a massage therapist or massage practitioner registration if providing massage for compensation in the therapist’s or practitioner’s own home, or providing outcall massage services.
C. Other City Permits. Registrants are advised that they must also obtain (1) a city business license, and (2) a home occupation permit if massage is practiced at the therapist’s or practitioner’s home. If a massage therapist or practitioner is an independent contractor of a massage establishment, he or she must obtain a city business license.
D. Massage Therapist/Practitioner Registration. A massage therapist or massage practitioner that is required to register under subsection B of this section must register with the city police department annually, and shall post evidence of city registration whenever massage is practiced. The registration application shall include: name, address and telephone of the massage therapist or massage practitioner; and proof of CAMTC certification or exemption pursuant to subsection B of this section. The registrant shall also indicate on the registration form whether he or she will be providing massage at the registrant’s home and whether he or she will perform outcall massage services. There is no charge for the registration. The massage therapist or massage practitioner shall notify the police department in writing within ten days of any change in the information provided and shall immediately notify the police department in writing if CAMTC suspends or revokes the registrant’s certification or takes other disciplinary action against the massage therapist or massage practitioner, and shall include a copy of any notice or order. (Ord. 15-06 §1(part), 2015).
9.27.050 Massage establishment permits.
A. Massage Establishment. No person may own or operate a massage establishment in the city unless:
1. Each person administering massage for compensation (whether as an employee or an independent contractor) is either a certified massage therapist or a certified massage practitioner under this chapter; and
2. The owner obtains, and continues to maintain, a current massage establishment permit pursuant to this chapter.
B. Land Use and Zoning Requirements. The premises and property on which the premises occupied by a massage establishment are located must conform to all applicable land use and zoning requirements.
C. Massage Establishment Permit Application Procedure.
1. The owner of a proposed massage establishment shall be the only person eligible to obtain a massage establishment permit for such business. The owner shall not be eligible to obtain a massage establishment permit unless the owner is at least eighteen years of age.
2. A separate permit is required for each massage establishment location.
3. The following shall be submitted to the chief at the time of application for a massage establishment permit:
a. A completed application form signed by: (i) the applicant; and (ii) either the record owner of the property or the lessor of the premises (if the business premises are leased to the applicant business) where the massage establishment is to be conducted. The application shall include the applicant’s full legal name and contact information, the address where the applicant desires to do business, and such other information as the police department may reasonably require.
b. Background Check. Each applicant shall submit the following:
i. Information related to the applicant’s business, occupation and employment history for the ten years preceding the date of application, and the inclusive dates of same.
ii. The name and address of any massage business or other like establishment owned or operated by the applicant, the name of all partners and co-owners in each business, and any discipline, suspension, or revocation for each business.
iii. A description of any other business located in the city of Kerman, even if not massage-related, that is owned or operated by the applicant.
iv. Information regarding any felony or misdemeanor convictions within the last five years, any outstanding warrants for arrest and any pending criminal case.
v. The applicant’s fingerprints on a form provided by the police department. Any fees for the fingerprints shall be paid by the applicant.
c. Two color photographs, taken within six months prior to the date of the application, that clearly show the applicant’s face. Any fees for the photographs shall be paid by the applicant.
d. A written description of the proposed massage establishment and how it will satisfy the requirements of this chapter.
e. A detailed floor plan in feet and inches drawn to scale showing: entrances, exits, windows, interior doors, restrooms, all other separately enclosed rooms with dimensions, including but not limited to closets, storerooms, break rooms, and changing rooms, and location of massage tables and chairs.
f. The register of massage therapist and practitioners required by this chapter.
g. A statement signed by the applicant certifying under penalty of perjury that all of the information submitted in connection with the application is true and correct.
h. A nonrefundable application fee in an amount set by resolution of the city council.
4. The chief shall, within sixty calendar days of the filing of a complete application, approve and issue the massage establishment permit if the requirements of this chapter have been met. The chief may deny a permit if any one of grounds for denial as set forth below is found to be true. Notice of the approval or denial of the permit shall be given to the applicant in writing by first class mail, postage prepaid. If the application is denied, the chief shall attach to the notice a statement of the reasons behind the denial. The time period set forth in this subsection for the chief to render a decision on the permit shall not be extended except upon the written consent of the applicant. Within fifteen days of mailing of the notice, the applicant may request a reconsideration hearing. A request for reconsideration shall be submitted to the chief in writing on a form provided by the police department, and shall specifically state the pertinent facts of the case and the reasons for the request for reconsideration. The reconsideration hearing shall be held within thirty days of the applicant’s request. The applicant may present any evidence to refute the chief’s original decision. The chief shall render a decision on the matter with ten days of the reconsideration hearing and shall notify the applicant in the same manner as the original decision. The decision of the chief is final.
5. Grounds for Denial. The chief may deny a massage establishment permit application if any of the following is true:
a. If the applicant has been convicted within the last five years of any felony or misdemeanor, or has an outstanding warrant for his or her arrest or a pending criminal case regarding an offense having reasonable relationship to the functions of a permittee.
b. The application was falsified in any material respect.
c. The applicant is required to register as a sex offender in any state.
d. If there has been a criminal investigation resulting in arrest related to the operation of the massage establishment within the last five years.
D. Permits Nontransferable.
1. No person shall operate a massage establishment under the authority of a massage permit at any place other than the address of the massage establishment stated in the application for the permit. The chief may approve a change of location, provided the massage establishment complies with all ordinances and regulations of the city and requirements of this chapter.
2. No massage establishment permit issued pursuant to this chapter shall be transferable to another person or entity.
3. Any attempt to transfer a massage establishment is hereby declared invalid and the permit shall automatically become void effective the date of such attempted transfer.
4. Nothing in this section shall prevent the chief from approving a second massage establishment permit for a single location; provided, that the holder of the massage establishment permit previously approved for such location consents in writing to the automatic expiration of such previously approved permit upon the effective date of such second permit.
E. Conditions of Massage Establishment Permit.
1. Every massage establishment shall display at all times during hours the permit issued pursuant to the provisions of this chapter for such business. The permit shall be displayed in a conspicuous place so that it may be readily seen by all persons entering the massage establishment.
2. If an individual’s CAMTC certification is suspended or revoked or if the individual is not CAMTC certified, the massage establishment may not allow that person to provide massage services, including outcall massage services, at or through the massage establishment.
3. The massage establishment must notify the city immediately upon the notice of any disciplinary action taken by the CAMTC regarding one of the establishment’s massage therapists or massage practitioners and submit a copy of any notice or order.
4. Any act or omission of anyone providing massage at the establishment’s location, whether as an employee or an independent contractor, which constitutes a violation of this chapter shall also be deemed to be an act or omission of the massage establishment.
5. Compliance with all federal, state, and local laws, and the requirements of this chapter.
F. Content of Permit. The permit shall specify the legal name of permittee. An establishment permit shall specify the name and address of the business location. A massage establishment permit authorizes massage services only at the location specified in the permit.
G. Term of Permit. A massage establishment permit issued under this chapter shall be valid for twenty-four months from the date of issuance unless suspended or revoked. However, it shall expire immediately upon the revocation or expiration of the related conditional use permit.
H. Renewal. A holder of a massage establishment permit issued under this chapter shall submit an application for renewal no later than sixty calendar days prior to the expiration of the permit issued for such establishment. The renewal application shall be submitted together with a nonrefundable fee in an amount established by resolution of the city council. Applications for renewal of massage establishment permit shall be processed in accordance with the procedures governing initial applications.
I. Grounds for Suspension or Revocation. The chief may suspend or revoke a massage establishment permit for the following causes:
1. The permittee has made any false, misleading, or fraudulent statement of material fact in any application, report, or record required to be filed with the city.
2. The permittee, or any employee, independent contractor, owner, agent, partner, director, stockholder, or manager of the massage establishment business has failed to comply with any of the requirements or conditions of this chapter.
3. An individual who is not a certified massage therapist, a certified massage practitioner or whose CAMTC certification is suspended or revoked, has provided massage at the massage establishment.
4. The permittee, or an employee, independent contractor, owner, agent, partner, director, stockholder, or manager of the massage establishment business has allowed or permitted, with or without knowledge, the occurrence of criminal activity on the premises of the massage establishment business.
5. There have been one or more acts prohibited under California Penal Code Section 246, 266a, 266e, 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.
6. The permittee or an employee, independent contractor, owner, agent, partner, director, stockholder, or manager of the massage establishment business has committed a misdemeanor, felony, or violation of this chapter in the conduct of the business.
7. 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.
8. The permittee, or an employee, independent contractor, owner, agent, partner, director, stockholder, or manager of the massage establishment has failed to abide by any disciplinary action previously imposed by an authorized city official.
J. Procedure for Suspension or Revocation.
1. On determining that grounds for permit suspension or revocation exist, the chief shall furnish written notice of the proposed suspension or revocation to the permittee. Such notice shall set forth the time and place of a hearing, and the ground(s) upon which the proposed suspension or revocation is based. The notice shall be mailed, postage prepaid, addressed to the last known address of the permittee, or shall be personally delivered to the permittee, at least ten days prior to the hearing date.
2. Hearings shall be conducted in accordance with procedures established by the chief which may include retention of an independent hearing officer. All parties involved shall have a right to: (a) offer testimonial, documentary, and tangible evidence bearing on the issues; (b) be represented by counsel; and (c) confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or witness.
3. After holding the hearing in accordance with this section or upon receipt of the decision of an independent hearing officer and upon determining that there are sufficient grounds for disciplinary action, the chief shall impose one of the following penalties:
a. A warning;
b. Suspension of the permit for a specified period not to exceed six months; or
c. Revocation of the permit.
d. The chief may, in conjunction with the issuance of a warning or the suspension of a permit, order the permittee to take appropriate corrective action. (Ord. 15-06 §1(part), 2015).
9.27.060 Record keeping.
A. The holder of a massage establishment permit shall maintain:
1. A register of all certified massage therapists and certified massage practitioners providing massage at the establishment, including independent contractors, and each such person’s state certificate number, home address, date of hiring, and whether the massage therapist or massage practitioner will be performing outcall massages. An amended copy of the register shall be provided to the chief within five days of the date of hiring, commencement of services, or termination of services by each massage therapist or massage practitioner at the establishment. Such filings shall be accompanied by a statement, signed by the owner, that all of the information in the register is true and correct.
2. A daily register, approved in form by the chief, of each client, the assigned room (or location of outcall massage service), the massage therapist or practitioner who treated the client, a description of service(s) performed, the price of the services, including any gratuity or tip, and the time of the appointment. The daily register shall be completed by the close of business every day, and shall be available for inspection by the city at all times during regular business hours. The register shall be considered confidential, not for public review, and may be inspected by the city only as part of a criminal investigation or during proceedings to investigate compliance with this chapter. These records shall be retained for at least one year.
B. A massage therapist or practitioner registered under this chapter is responsible for compliance with subsection (A)(2) of this section. (Ord. 15-06 §1(part), 2015).
9.27.070 Health and safety requirements.
The operator of a massage establishment and a registered massage therapist or practitioner shall conduct the massage establishment business in a safe and sanitary manner, and shall:
A. Comply with all applicable building, fire, safety, health, electrical, plumbing, mechanical, heating and ventilating, sanitation, and other laws applicable to the premises;
B. Provide for the regular removal of garbage and refuse, and the safe storage or removal of flammable materials;
C. Maintain all equipment used to perform massage services in a safe and sanitary condition, including the regular application of cleansers and bacterial cleaning agents;
D. Launder all materials furnished for the personal use of the client, such as towels and linens, before each use;
E. Maintain all bathroom and plumbing fixtures in a sanitary condition, provide hot and cold running water, and comply with sanitation requirements of the county health department;
F. Provide a wash basin for therapists and employees, located within or as close as practicable to the area devoted to the massage therapy services. Each wash basin shall be equipped with hot and cold running water, soap in a dispenser and sanitary towels. In the case of a massage establishment located in a home, existence of a bathroom meeting this requirement is sufficient;
G. Provide either a separate room or dressing and locker facilities for each client. However, dressing and undressing may occur in the same room as massage therapy if the client is alone in the room with the door(s) closed and opaque coverings are present on any windows while undressing or dressing. The massage therapist or other clients may not be present in the same room when the client is undressing;
H. In each room or cubicle where massage is administered, have lighting whenever the area is occupied equivalent to a minimum of an incandescent twenty-five-watt clear-glass light bulb;
I. For a massage establishment in which the therapist or practitioner is an employee, all massage services shall be paid for in the reception area, and all tips, if any, shall be paid in the reception area. For a massage establishment at which a therapist or practitioner is an independent contractor, all massage services and all tips, if any, may be paid in the same room where the massage occurred, provided the door to the room is fully open. A massage establishment which is located in a home is exempt from this subsection because by the nature of the site it does not include a reception area;
J. Comply with the portions of the Massage Therapy Act (Business and Professions Code Section 4608) relating to the requirements that a certificate holder display his or her original certificate wherever he or she provides massage for compensation, and to have his or her identification card in his or her possession while providing massage services for compensation;
K. Comply with the portions of the Massage Therapy Act (Business and Professions Code Section 4609(a)) relating to sexual acts, including not allowing certificate holders: to engage in any form of sexual activity on the premises of a massage establishment where massage is provided for compensation, excluding a residence; to engage in sexual activity while providing massage services for compensation; to provide massage of the genitals or anal region; or to provide massage of female breasts without the written consent of the person receiving the massage and a referral form from a licensed California health care provider;
L. Comply with portions of the Massage Therapy Act (Business and Professions Code Sections 4608, 4609, 4611) relating to advertising, including requiring certificate holders: to include the name under which he or she is certified and his or her certificate number in any and all advertising of massage services; to not hold him- or herself out as a certified massage therapist or practitioner, or use terms such as "licensed" or "certified," that implies that an uncertified person is certified as a massage therapist or practitioner; to not falsely state or advertise or put out any sign or card, or to falsely represent to the public, that any individual is licensed, certified, or registered as a massage therapist or practitioner if that individual is not so certified;
M. Comply with the portions of the Massage Therapy Act (Business and Professions Code Section 4609) related to dressing requirements, including dressing while engaged in the practice of massage for compensation, or while visible to clients in a massage establishment, in attire that is not: transparent, see-through, or substantially exposes the certificate holder’s undergarments; swim attire, if not providing a water-based massage modality approved by CAMTC; a manner that exposes the certificate holder’s breasts, buttocks, or genitals; a manner that constitutes a violation of Section 314 of the Penal Code; or a manner that has been deemed by CAMTC to constitute unprofessional attire; and
N. Not serve or permit the consumption of alcoholic beverages unless the massage establishment has a current and valid ABC (California Department of Alcoholic Beverage Control) license and all required city approvals, nor permit the consumption of any drugs, except pursuant to a valid prescription. (Ord. 15-06 §1(part), 2015).
9.27.080 Inspections.
The chief may inspect the premises at the time of permitting a massage establishment, and may make periodic, reasonable inspections of the establishment during business hours to assure compliance with the CAMTC requirement, this chapter and applicable fire, health and safety requirements. If any violations are found, the chief shall notify the holder of the massage establishment permit in writing. The chief may give the establishment ten days to correct the violation(s), or, if the violation(s) present a danger to public health or safety, close the establishment until the violation(s) is corrected. (Ord. 15-06 §1(part), 2015).
9.27.090 Hours of operation.
No massage establishment and no registered massage therapist or practitioner may provide massage service between the hours of ten p.m. and seven a.m. Clients and visitors shall be excluded from a massage during those hours. (Ord. 15-06 §1(part), 2015).
9.27.100 Department coordination with CAMTC.
The chief of police shall designate a person in the police department to coordinate with CAMTC, including maintaining a list of certified therapists and practitioners practicing in the city, maintaining a list of massage establishments operating in the city, receiving notices and information from the CAMTC, and notify CAMTC of any arrest or conviction of Penal Code Section 647 or other act punishable as a sexually related crime. (Business and Professions Code Section 4614.) (Ord. 15-06 §1(part), 2015).
9.27.110 Property owner responsibility.
Any place where lewdness, assignation or prostitution occurs is a public nuisance which may be abated and permanently enjoined, and for which the city may recover damages from the property owner, as well as from the person conducting or maintaining the nuisance. (Penal Code Sections 11225 and 11226.) (Ord. 15-06 §1(part), 2015).
9.27.120 Applicability of regulations to existing massage establishments, therapists and practitioners.
A. Any massage establishment that was validly registered as of the date of the ordinance codified in this chapter to operate a massage establishment must apply for a massage establishment permit within forty-five days of the effective date of this chapter. Any registration issued hereunder prior to the effective date of the ordinance codified in this chapter shall be null and void upon the passage of forty-five days from the effective date hereof. Notwithstanding the prior sentence, if an application for a massage establishment is submitted prior to the expiration of the massage establishment registration, the prior registration shall continue in effect until such time as a determination is made by the city on the massage establishment permit application.
B. Registrations for massage therapists and massage practitioners shall continue in effect until their normal expiration. (Ord. 15-06 §1(part), 2015).
9.27.130 Report to city council.
Annually, the police department shall report to the city council on permits issued, denied, suspended, or revoked and any enforcement activity related to massage establishments. (Ord. 15-06 §1(part), 2015).
9.27.140 Penalties for violation.
A. Criminal Proceedings. Any person who violates a provision of this chapter shall be guilty of a misdemeanor unless the city attorney elects to prosecute the violation as an infraction.
B. Injunction and Abatement. Nothing in this chapter shall be deemed to prevent the city of Kerman from commencing a civil action to enjoin the continued violation of any provision of this chapter or to abate a nuisance, as an alternative, or in conjunction with any other civil or criminal proceeding. (Ord. 15-06 §1(part), 2015).
9.27.150 Public nuisance.
Any violation of this chapter shall be considered a public nuisance pursuant to Title 17. (Ord. 15-06 §1(part), 2015).