Chapter 5.28
MASSAGE BUSINESSES AND MASSEURS
Sections:
5.28.010 Definitions.
5.28.020 Existing businesses – Applicability.
5.28.030 Existing businesses – Deadline for filing for new permit.
5.28.040 Massage establishment, outcall service – Permit – Required.
5.28.050 Applicant for massage establishment or outcall massage service permit to file application, pay filing fee.
5.28.060 Massage establishment, outcall service – Permit – Application information requirements.
5.28.070 Massage establishment, outcall service – Permit – Corporate applicants – Exceptions.
5.28.080 Duty to file application for masseur permit and pay investigation fee.
5.28.090 Masseur permit – Application information requirements.
5.28.100 Applications – Verification.
5.28.110 Applications – Referral to departments for inspection and recommendations.
5.28.120 Application – Hearing requirements.
5.28.130 Massage establishment, outcall service – Permit issuance conditions.
5.28.140 Massage establishment permit – Issuance restrictions.
5.28.150 Masseur permit – Issuance conditions.
5.28.160 Employees – Masseur permit required when – Register of employees.
5.28.170 Employees – Identification nameplate.
5.28.180 Employer to see that masseurs have permits.
5.28.190 Display of permits.
5.28.200 Name and place of business – Restrictions.
5.28.210 Sale or transfer of business voids permit.
5.28.220 Permits not transferable.
5.28.230 Patrons of massage establishment, outcall service – Register required.
5.28.240 Inspection of massage establishments.
5.28.250 Employees – Persons under 18 years prohibited.
5.28.260 Unlawful activities designated – Grounds for permit revocation.
5.28.270 Permit suspension or revocation conditions – Massage establishment or outcall service.
5.28.280 Permit suspension or revocation conditions – Masseur.
5.28.290 Permit suspension or revocation conditions – Hearing required – Notice.
5.28.300 Denial, suspension or revocation of permit – Hearing – Council findings by resolution.
5.28.010 Definitions.
A. For the purposes of this chapter, the following words and phrases shall have the following meanings:
1. “Employee” means and includes all persons paid directly by the permittee on a monthly, weekly or hourly basis, except that persons, other than masseurs, rendering service as an independent contractor shall not be deemed an “employee” within the meaning of this chapter.
2. “Health officer” means the health officer of the county of Alameda, or his authorized representative.
3. “Massage” means a method of treating the external parts of the body for remedial or hygienic purposes by rubbing, stroking, kneading, adjusting or tapping with the hand or an instrument. “Massage” does not include therapy that is a means employed in the cure of disease, the management of disease or of diseased parts.
4. “Massage establishment” means any establishment wherein a massage is given, engaged in or carried on, or permitted to be given, engaged in or carried on, either as a primary or secondary function.
5. “Masseur” means any person who engages in the practice of massage, as defined in this section. “Masseur” shall also include masseuse, as the use of the masculine gender shall include in all cases the feminine gender as well.
6. “Outcall massage service” means any business not licensed as a massage establishment under the provisions of this chapter wherein the principal function is such that a massage is given, engaged in or carried on, or permitted to be given, engaged in or carried on.
7. “Person” means any individual, copartnership, firm, association, joint stock company, corporation or combination of individuals of whatever form or character.
B. The foregoing definitions shall not include hospitals, nursing homes, sanitariums, persons holding an unrevoked certificate or license to practice the healing arts under the laws of the state, or persons working under the direction of any such persons in any such establishments. (1960 code § 12A.1)
5.28.020 Existing businesses – Applicability.
The provisions of this chapter shall be applicable to persons now engaged in the business herein regulated. Existing businesses of the kind referred to in this chapter shall conform with all provisions of this chapter, except that persons applying for a license hereunder may substitute two years’ experience in the operation of a massage establishment or an outcall massage service in the city for the requirement contained in either LMC 5.28.060 (B)(8) or 5.28.090(H). Masseur applicants may substitute one year’s experience for the same requirement. (1960 code § 12A.28)
5.28.030 Existing businesses – Deadline for filing for new permit.
Persons now engaged in the business referred to in this chapter and in LMC 5.28.020, either as an operator of a massage establishment or an outcall massage service, shall file for a permit required by LMC 5.28.040 within 30 days of the effective date of the ordinance codified in this chapter; failure to do so shall make continued operation of the place of business a violation of LMC 5.28.300. (1960 code § 12A.29)
5.28.040 Massage establishment, outcall service – Permit – Required.
It is unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the city, the operation of a massage establishment or an outcall massage service, as herein defined, without first having obtained a permit from the police department, issued pursuant to the provisions of this chapter. (1960 code § 12A.2)
5.28.050 Applicant for massage establishment or outcall massage service permit to file application, pay filing fee.
Every applicant for a permit to maintain, operate or conduct a massage establishment or outcall massage service shall file an application with the chief of police upon a form provided by the chief of police, and shall pay a filing fee at the city finance department. The amount of the fee shall be set by resolution in an amount to cover the actual costs of administration. Evidence of the payment of the fee shall be presented with the application to the chief of police. (Ord. 1183 § 6, 1985; Ord. 1162 § 6, 1984; 1960 code § 12A.3)
5.28.060 Massage establishment, outcall service – Permit – Application information requirements.
A. The application for a permit to operate a massage establishment or an outcall massage service shall set forth the exact nature of the massage to be administered, the proposed place of business and facilities therefor, and the name and address of each applicant.
B. In addition to the foregoing, any applicant for a permit shall furnish the following information:
1. The two previous business and residential addresses immediately prior to the present or proposed business address of the applicant;
2. Written proof that the applicant is over the age of 18 years;
3. Applicant’s height, weight, color of eyes and hair, and sex;
4. Two portrait photographs at least two inches by two inches;
5. Business, occupation or employment of the applicant for the 18 months immediately preceding the date of the application;
6. The massage or similar business license history of the applicant; whether such person, in previously operating in this or another city or state under license, has had such license revoked or suspended, the reason therefor, and the business activity or occupation of applicant subsequent to such action or suspension or revocation;
7. All criminal convictions, and the reasons therefor;
8. a. Applicants must furnish a diploma or certificate of graduation from a school approved by the state, or otherwise recognized, wherein the method, profession or work of massage technicians is taught. The term “otherwise recognized” means and includes any school or institution of learning which has for its purpose the teaching of the theory, method, profession or work of massage technicians, which school requires a resident course of study of not less than 70 hours to be given in not less than three calendar months before the student shall be furnished with a diploma or certificate of graduation from such school or institution of learning, showing the successful completion of such course of study or learning.
b. A school offering correspondence courses in massage, not requiring actual attendance in a class, shall not be deemed a “recognized school” for the purposes of this chapter. The chief of police shall have a right to confirm the fact that the applicant has actually attended classes in a recognized school;
9. A certificate from a medical doctor, stating that the applicant has, within 30 days immediately prior thereto, been examined and found to be free or any contagious or communicable disease;
10. Such other identification and information necessary to discover the truth of the matters hereinbefore specified as required to be set forth in the application;
11. Nothing contained herein shall be construed to deny to the chief of police the right to take the fingerprints and additional photographs of the applicant, nor shall anything contained herein be construed to deny the right of the chief of police to confirm the height and weight of the applicant;
12. a. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation; the names and residence addresses of each of the officers, directors, and each stockholder owning more than 10 percent of the stock of the corporation;
b. If the applicant is a partnership, the application shall set forth the name and residence address of each of the partners, including limited partners. If one or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant apply.
c. A corporation or partnership shall be deemed to have complied with the provisions of subsection (B)(1) of this section if the managing director or partner or managing employee of the business has the required diploma or certificate of graduation. (1960 code § 12A.4)
5.28.070 Massage establishment, outcall service – Permit – Corporate applicants – Exceptions.
The provisions of LMC 5.28.060(B)(1), (2), (3), (4) and (7) relating to requirements for corporate applicants shall not apply to any of the following:
A. The corporation the stock of which is listed on a stock exchange in the state of California or in the city of New York, state of New York;
B. A bank trust company, financial institution or title company to which application is made or to whom a license is issued in a fiduciary capacity;
C. A corporation which is required by law to file periodic reports with the Securities and Exchange Commission. (1960 code § 12A.5)
5.28.080 Duty to file application for masseur permit and pay investigation fee.
Any person who engages in the practice of massage, as defined in this chapter shall file an application with the chief of police upon a form provided by the chief of police and shall pay an investigative fee at the city finance department. The amount of the fee shall be set by resolution in an amount to cover the actual costs of administration. Evidence of payment of the fee shall be presented with the application to the chief of police. (Ord. 1183 § 6, 1985; Ord. 1162 § 6, 1984; 1960 code § 12A.6)
5.28.090 Masseur permit – Application information requirements.
The application for a masseur permit shall contain the following:
A. Name and residence address;
B. Social security number and driver’s license number, if any;
C. Applicant’s height, weight color of eyes and hair and sex, and date of birth;
D. Written evidence that the applicant is over the age of 18 years;
E. Business occupation or employment of the applicant for the 18 months immediately preceding the date of the application;
F. Whether such person has ever been convicted of any crime except misdemeanor traffic violations. If any person mentioned in this subsection has been so convicted, a statement must be made giving the place and court in which the conviction was had, the specific charge under which the conviction was obtained, and the sentence imposed as a result of such conviction;
G. The chief of police shall have the right to take fingerprints and a photograph of the applicant with the right of the chief of police to confirm the information submitted;
H. 1. Applicants must furnish a diploma or certificate of graduation from a school approved by the state of California or otherwise recognized wherein the method, profession or work of massage technicians is taught. The term “otherwise recognized” means and includes any school or institution of learning which has for its purpose the teaching of the theory, method, profession or work of massage technicians which school requires a resident course of study of not less than 70 hours, to be given in not less than three calendar months, before the student shall be furnished with a diploma or certificate of graduation from such school or institution of learning, showing the successful completion of such course of study or learning;
2. A school offering correspondence courses in massage, not requiring actual attendance in a class, shall not be deemed a “recognized school” for the purposes of this chapter. The chief of police shall have a right to confirm the fact that the applicant has actually attended classes in a recognized school. (1960 code § 12A.7)
5.28.100 Applications – Verification.
Every application for a permit under this chapter shall be verified by the applicant under penalty of perjury. (1960 code § 12A.9)
5.28.110 Applications – Referral to departments for inspection and recommendations.
The chief of police, upon receiving an application for a massage establishment permit or an outcall massage service permit, shall refer the applications to the city building official, the fire chief, the Alameda County health department and the city planning department, which departments shall inspect the premises proposed to be devoted as a massage establishment or public bathhouse, and shall make separate written recommendations to the chief of police concerning compliance with the respective requirements within 10 days after receipt of the aforementioned referral. (1960 code § 12A.10)
5.28.120 Application – Hearing requirements.
When an application is filed for a permit under this chapter and the reports required by LMC 5.28.110 have been received, the chief of police shall fix a time and place for a hearing thereon. Not less than 10 days before the date of such hearing, the chief of police shall cause to be posted a notice of such hearing in a conspicuous place on the property in which or on which the proposed massage establishment or massage service is to be operated and shall, by certified mail, send a similar notice to the applicant. Such posting of notice shall be carried out by the police department. (1960 code § 12A.11)
5.28.130 Massage establishment, outcall service – Permit issuance conditions.
The chief of police shall issue a permit within 14 days following the hearing if all of the provisions of this chapter have been met, and shall issue a permit to all persons who have applied to perform massage services, unless he finds:
A. That the operation as proposed by the applicant, if permitted, would not comply with all applicable ordinances and laws, including, but not limited to, the city’s building, zoning and fire ordinances, or regulations adopted by the chief of police, or the health ordinances or regulations of the county of Alameda;
B. That the applicant or any other person who will be directly engaged in the management and operation of a massage establishment or outcall massage service has been convicted of:
1. An offense involving conduct which requires registration pursuant to Section 290 of the Penal Code of the state;
2. An offense involving the use of force and violence upon the person of another that constitutes a felony;
3. An offense involving sexual misconduct with children;
4. An offense as defined under Sections 311, 647(a), 647a, 647b, 315, 316 or 318 of the Penal Code of the state;
C. If it reasonably appears that the location of the business, after review of the reports required by LMC 5.28.110, is not a suitable place in which to conduct or maintain such business or calling, or the applicant requesting such permit does not warrant the issuance thereof. (1960 code § 12A.12)
5.28.140 Massage establishment permit – Issuance restrictions.
No permit to conduct a massage establishment shall be issued unless an inspection conducted pursuant to LMC 5.28.110 reveals that the establishment complies with each of the following minimum requirements:
A. Construction of rooms used for toilets, tubs, steam baths and showers shall be performed in accordance with the provisions of this code, and conform to all applicable building regulations contained in Chapter 12.04 LMC and LMC Title 15.
B. Toilet facilities shall be provided in convenient locations. When five or more employees and patrons of different sexes are on the premises at the same time, separate facilities shall be provided. A single water closet per sex shall be provided for each 20 or more employees or patrons of that sex on the premises at any one time. All toilet rooms shall be equipped with self-closing doors opening in the direction of ingress to the toilet rooms. Toilets shall be designated as to the sex accommodated therein.
C. Lavatories or washbasins provided with both hot and cold running water shall be installed in either the toilet room or the vestibule. Lavatories or washbasins shall be provided with soap in a dispenser, and with sanitary towels.
D. 1. All portions of massage establishments shall be provided with adequate light and ventilation by means of windows or skylights, with an area of not less than one eighth of the total floor area, or shall be provided with artificial light and a mechanical operating ventilating system approved by the building official. When windows or skylights are used for ventilation, at least one-half of the required window area shall be operable.
2. To allow for adequate ventilation, cubicles, rooms and areas provided for patrons’ use not served directly by a required window, skylight or mechanical system of ventilation shall be constructed so that the height of partitions does not exceed 75 percent of the floor-to-ceiling height of the area in which they are located. (1960 code § 12A.8)
5.28.150 Masseur permit – Issuance conditions.
The chief of police shall issue a masseur permit within 14 days following a hearing unless he finds that the applicant who will be directly engaged as a masseur has been convicted of:
A. An offense involving conduct which requires registration pursuant to Section 290 of the Penal Code of the state;
B. An offense involving the use of force and violence upon the person of another that constitutes a felony;
C. An offense involving sexual misconduct with children;
D. An offense as defined under Sections 311, 647(a), 647a, 647b, 315, 316 or 318 of the Penal Code of the state. (1960 code § 12A.13)
5.28.160 Employees – Masseur permit required when – Register of employees.
No operator of a massage establishment or an outcall massage service, as defined in this chapter, shall employ any person on the premises unless and until such person has been granted a masseur permit by the chief of police, as provided herein. The operator of such establishment must maintain a register of all persons so employed and their permit number, which register shall be available for inspection at all times during regular business hours. (1960 code § 12A.14)
5.28.170 Employees – Identification nameplate.
The chief of police shall provide each employee licensed pursuant to this chapter with an identification nameplate, which shall contain a photograph of the employee, the full name and permit number assigned to the employee, and which must be worn during working hours on the chest portion of the body. (1960 code § 12A.15)
5.28.180 Employer to see that masseurs have permits.
It shall be the responsibility of the holder of the permit for the massage establishment, or the employer of any such persons purporting to act as masseurs, to insure that each person employed as a masseur shall first have obtained a valid permit pursuant to this chapter. (1960 code § 12A.27)
5.28.190 Display of permits.
Every person to who or for whom a permit shall have been granted pursuant to the provisions of this chapter shall display the permit in a conspicuous place so that the same may be readily seen by persons entering the premises; or persons engaged in an outcall massage service must have their permit available for inspection at all times. (1960 code § 12A.23)
5.28.200 Name and place of business – Restrictions.
A. No person who is granted a permit issued pursuant to this chapter shall operate under any name or conduct his business under any designation not specified in his permit.
B. Permittees shall notify the police department of any changes in name or address of home or business. In case of any change of location or extension of the place of business, inspection thereof shall be made as required in this chapter, before use of the same for the purpose of such business, and an amended permit shall be issued within 30 days, if indicated, in order to show clearly the address or place of such new location or extension. No fee shall be charged either for such inspection or for such amended permit. (1960 code § 12A.17)
5.28.210 Sale or transfer of business voids permit.
Upon sale or transfer of a massage establishment or an outcall massage service, the permit and license therefor shall be null and void. (1960 code § 12A.20)
5.28.220 Permits not transferable.
No permit issued under the provisions of this chapter shall be transferable. (1960 code § 12A.25)
5.28.230 Patrons of massage establishment, outcall service – Register required.
Every person who engages in or conducts a massage establishment or outcall massage service, as defined in this chapter, shall keep a daily register approved in form by the police department, of all patrons, the hour of patron’s arrival, the room or cubicle assigned to patron, and the masseur who massaged the patron. This daily register shall, at all times during business hours, be subject to inspection by the health officer and by the police department, and shall be kept on file for one year. (1960 code § 12A.22)
5.28.240 Inspection of massage establishments.
The police department and the health officer shall, from time to time, make an inspection of each massage establishment in the city for the purpose of determining compliance with the provisions of this chapter. (1960 code § 12A.24)
5.28.250 Employees – Persons under 18 years prohibited.
It is unlawful for the owner, proprietor, manager or any other person in charge of any massage establishment or outcall massage service to employ any person who is not at least 18 years of age. (1960 code § 12A.19)
5.28.260 Unlawful activities designated – Grounds for permit revocation.
It is unlawful for any person to massage any other person, or give or administer any bath or baths, or to give or administer any of the other things mentioned in this chapter which would violate the provisions of LMC 5.28.280(C). Any violation of this provision shall be deemed grounds for the revocation of the permit granted under this chapter. (1960 code § 12A.26)
5.28.270 Permit suspension or revocation conditions – Massage establishment or outcall service.
Any permit issued for a massage establishment or outcall massage service may be revoked or suspended by the chief of police, after a hearing conducted pursuant to LMC 5.28.290 in any case where any of the provisions of this chapter are violated, or where any employee of the permittee including masseurs, is engaging in immoral conduct or activities at permittee’s place of business, or in any case where the permittee refuses to permit any fully authorized officer of the city to inspect the premises or the operations therein. Such permit may also be revoked or suspended by the chief of police, after hearing upon the recommendation of the health officer that such business is being managed, conducted or maintained without regard for the public health or health of patrons or customers, or without due regard to proper sanitation or hygiene. (1960 code § 12A.16)
5.28.280 Permit suspension or revocation conditions – Masseur.
Any masseur permit issued by the chief of police may be revoked or suspended after a hearing conducted pursuant to LMC 5.28.290 on any of the following grounds:
A. Violation of any of the provisions of this chapter applicable to masseurs;
B. Conviction of any crime requiring registration under Section 290 of the Penal Code of the state;
C. Violation of Section 311, 647(a), 647a, 647b, 650 2, 315, 316 or 318 of the Penal Code of the state. (1960 code § 12A.17)
5.28.290 Permit suspension or revocation conditions – Hearing required – Notice.
Prior to the revocation or suspension of any permit issued pursuant to the provisions of this chapter, a hearing shall be held by the chief of police. Written notice of the grounds for the hearing, as well as its time and place, shall be mailed to the permittee seven days prior to the hearing. Within 24 hours after the conclusion of the hearing, the chief of police shall provide written notice to permittee of his decision. (1960 code § 12A.18)
5.28.300 Denial, suspension or revocation of permit – Hearing – Council findings by resolution.
A. Within five days after receiving written notification that an application for a permit to operate a massage establishment or an outcall massage service, or for the practice of massage, or that a permit has been revoked or suspended, the applicant or permittee so affected may file with the city clerk a written statement, addressed to the city council, requesting a public hearing on the application before the council, and stating therein written exceptions to the findings of fact upon which the chief of police based his denial revocation or suspension. Such exceptions shall include, but not be limited to, statements why applicant or permittee believes the chief of police acted improperly or failed to act properly. Upon the filing of such statement, the council shall fix a time, date and place for a public hearing thereon, and shall notify the applicant or permittee thereof. In the case of an application which has been denied, the hearing shall be held at a regular meeting of the council not later than 30 days from the date on which the written statement was filed with the city clerk; in the case of a revocation or suspension of a permit, such hearing shall be held not later than 15 days from the date on which the written statement was filed with the city clerk. At the hearing, the applicant or permittee may present evidence in support of his statement. Any interested party may, in the discretion of the city council, be allowed to participate in the hearing and present evidence in support of or in opposition to the applicant or permittee.
B. The council, by resolution, shall, no later than 15 days after the conclusion of the hearing, make findings of fact and either deny or grant the application for permit or, in the case of a revocation or suspension of permit, uphold or overrule the decision of the chief of police subject to any reasonable conditions thereto as it deems appropriate. The council in its resolution shall state the facts upon which its decision is based, and its ruling upon any exception to the chief of police’s original findings of fact upon the application or the revocation or suspension. A copy of the resolution shall be served by mail upon the applicant and on parties to the hearing requesting same. The action of the city council, as declared by the resolution, shall be final. (1960 code § 12A.32)