CHAPTER 8.38
MASSAGE ESTABLISHMENTS AND MASSAGE PROFESSIONALS

8.38.010 Purpose and intent.

It is the purpose and intent of the city council that the operation of massage establishments and massage professionals as defined in this chapter should be regulated so as to further the public interest, safety, and welfare by establishing minimum building, sanitation, and health standards for massage establishments and minimum qualifications for massage professionals consistent with applicable law, including existing authority for local regulation of massage establishments and professionals. (Ord. 2473 NCS §1 (part), 2013.)

8.38.020 Definitions.

For the purpose of this chapter, the following words and phrases shall mean or include:

A.    "Approved school" means an approved school as defined in California Business and Professions Code Section 4600(a).

B.    "California Massage Therapy Council" or "CAMTC" means the nonprofit organization created pursuant to Chapter 10.5 of the Business and Professions Code and/or any subsequent amendment or superseding statute, and/or any successor organization.

C.    "CAMTC certificate" means a certificate, or conditional certificate, issued by the CAMTC to massage therapists, pursuant to California Business and Professions Code Section 4601(c), and/or to massage practitioners pursuant to Section 4601(b), 4604(a) or 4604(c), and/or certificates issued pursuant to Chapter 10.5 of the Business and Professions Code. When used in this chapter, "CAMTC certification" means having a valid CAMTC certificate.

D.    "Certified massage establishment" means a massage establishment that employs or uses only massage professionals with CAMTC certification to perform massage services. Unless otherwise stated, "certified massage establishment" includes certified sole proprietorships.

E.    "Certified sole proprietorship" means a sole proprietorship where the owner has received CAMTC certification and is the only provider of massage services for that business.

F.    "Fee" means the amount applicants for new or renewed massage permits are required to pay in accordance with Section 8.38.090.

G.    "Health officer" means the health officer of Sonoma County or his/her authorized representative.

H.    "Implementing zoning ordinance" means city Ordinance No. 2300 NCS.

I.    "Massage" means the method of treating the superficial parts of the body, excluding specified anatomical areas, for medical or hygienic purposes, and not for purposes of offering, engaging in or permitting specified sexual activities, by rubbing, pressing, stroking, kneading, tapping, pounding, vibrating, or stimulating with the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliance commonly used in the practice of massage, and with or without supplementary aids such as rubbing alcohol, oils, powders, creams, lotions, ointment, or other similar preparations commonly used in the practice of massage. Massage includes such manipulation of the body or similar procedures described in this subsection that are performed in hydrotherapy, spa or similar bath facilities.

J.    "Massage establishment" means a business conducted by any individual, firm, association, partnership, corporation or combination of individuals that provides or offers massage in exchange for money or other consideration.

K.    "Massage professional" means any person who administers massage to another person, for any form of consideration or pecuniary compensation.

L.    "Massage permit" means authorization issued in accordance with this chapter to massage professionals practicing in the city that meet the requirements of Section 8.38.060.

M.    "Permit administrator" means the police chief of the city, his/her designee, or any other person designated by the city manager to issue massage permits and enforce the regulations contained in this chapter.

N.    "Permitted massage establishment" means a massage establishment, including sole proprietorships, where not all the massage professionals have CAMTC certification, and where all those massage professionals that lack CAMTC certification have a valid massage permit issued in accordance with this chapter.

O.    "Specified sexual activities" means any of the following:

1.    Erotic touching or fondling of the body, including, but not limited to, erotic touching or fondling of a specified anatomical area.

2.    Sex acts, actual or simulated including but not limited to intercourse, oral copulation, masturbation or sodomy.

3.    Excretory functions as part of or in connection with the activities specified in this section.

(Ord. 2473 NCS §1 (part), 2013.)

8.38.030 Exemptions.

The provisions of this chapter shall not apply to the establishments and individuals listed below while engaged in the performance of the duties of their respective licensed or certificated professions:

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

B.    Hospitals, nursing homes, sanitariums, or persons holding an unrevoked certificate to practice in the healing arts under the laws of the state of California, or persons working under the direction of any such persons or in any such establishments.

C.    Barbers, cosmetologists, and manicurists who are duly licensed under the laws of the state, except that this exemption shall apply solely to the massaging of the neck, face, scalp, hair, hands or feet of the customer or client.

D.    Teachers or students enrolled in a school, as defined in the implementing zoning ordinance, and participating in the teaching and/or administration of massage by authorized school employees in conjunction with athletic programs, training in the healing arts or other school courses.

(Ord. 2473 NCS §1 (part), 2013.)

8.38.040 Obligation to apply for massage permit or provide CAMTC certificates within one hundred twenty days—Grace period.

Within one hundred twenty days of the effective date of this chapter, massage professionals and massage establishments in operation in the city that are subject to the requirements of this chapter must apply for massage permit(s) required by this chapter or provide to the permit administrator copies of valid CAMTC certificates as required by this chapter. Massage professionals and massage establishments that are subject to the requirements of this chapter, that have a current city business license, and that have submitted a complete massage permit application in accordance with this chapter may continue operation while the massage permit application is processed. All massage professionals and massage establishments that are subject to the requirements of this chapter and that are in operation in the city one hundred and twenty-one days or more after the effective date of this chapter must have a current city business license and must have provided valid CAMTC certificates or applied for a massage permit in accordance with this chapter or be subject to penalties specified in this chapter and other applicable laws. (Ord. 2473 NCS §1 (part), 2013.)

8.38.050 Massage professionals—Massage permit or copy of CAMTC certification and city business license requirements.

Except as provided in Section 8.38.040, it is unlawful for any massage professional subject to the requirements of this chapter to provide massage services or practice massage within the city without a valid, unexpired and unrevoked massage permit issued by the permit administrator or a valid, unexpired and unrevoked CAMTC certificate. Except for massage professionals practicing massage only as an employee of a massage establishment, it is also unlawful for any massage professional subject to the requirements of this chapter to provide massage services or practice massage within the city without a current city business license in accordance with Chapter 6.01. (Ord. 2473 NCS §1 (part), 2013.)

8.38.060 Massage permit application requirements.

Massage permit applications must be submitted using forms provided by the permit administrator and include the following:

A.    The applicant’s full name, all other names the applicant uses or has used, the applicant’s residential address, and residence telephone number;

B.    The name and address of the massage establishment where the applicant is to be employed and the name of the massage establishment owner;

C.    The names and addresses of any and all previous establishments where the applicant has been employed as a massage professional, including evidence of continuous practice of massage therapy in the city since January 1, 2010;

D.    A portrait photograph of the applicant at least two inches by two inches, together with a complete set of the applicant’s fingerprints, which shall be taken by the permit administrator or his/her agent;

E.    Written proof that the applicant is over the age of eighteen years;

F.    A signed affidavit that the applicant is not aware of having any contagious and/or communicable disease capable of being transmitted through the performance of massage;

G.    A copy of a diploma, certificate of graduation or transcripts of course work from an approved school showing satisfactory completion of one hundred hours or more of nonrepetitive curriculum, with a passing grade or better in health theory, health care, anatomy, physiology, psychology, biomechanics, or kinesiology or similar curriculum;

H.    A statement signed by the owner or operator of a massage establishment indicating an intent to employ the applicant as a massage professional (unless the applicant is the massage establishment owner or operator);

I.    Each conviction, and each plea of guilty, or nolo contendere for violation of any of the following sections of the California Penal Code:

1.    366(i) (pandering);

2.    315 (keeping or residing in a house of ill fame);

3.    316 (keeping a disorderly house or lets any premises knowing that it is to be used for the purpose of assignation or prostitution);

4.    318 (prevailing on a person to visit a place of prostitution);

5.    Subdivision (a) of Section 647 (lewd conduct);

6.    Subdivision (b) of Section 647 (disorderly conduct by soliciting or engaging in prostitution);

J.    Each conviction and each plea of guilty or nolo contendere for felony offenses involving the sale of controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code;

K.    Each conviction and each plea of guilty or nolo contendere for misdemeanor or felony offenses that relate directly to the practice of massage;

L.    Each conviction and each plea of guilty or nolo contendere for a felony, the commission of which occurred on the premises of a massage establishment, or in the course of massage;

M.    Each conviction and each plea of guilty or nolo contendere for an offense involving the use of force and violence upon the person of another or for an offense involving the theft of property;

N.    Each conviction and each plea of guilty or nolo contendere for attempt or conspiracy to commit any of the offenses listed in this section;

O.    Each conviction, and each plea of guilty or nolo contendere for offenses committed in a jurisdiction outside of the state of California, which, if committed within the state of California, would fall within one of the offenses listed in this section;

P.    Whether the applicant is required to register under provisions of Section 290 of the California Penal Code (registration as a sex offender);

Q.    Whether the applicant, or a former employer of the applicant while so employed, or a building in which the applicant was so employed, was ever subjected to an abatement proceeding under Sections 11225 through 11235 (Red Light Abatement Act) of the California Penal Code or any similar provisions of law in a jurisdiction outside the state of California; and

R.    Whether any permit to engage in the practice of massage as a massage professional or otherwise has previously been denied applicant or revoked, and, if so, the circumstances of the denial or revocation.

(Ord. 2473 NCS §1 (part), 2013.)

8.38.070 Certified massage establishment and certified sole proprietorship requirements.

A.    For massage establishments providing massage services within the city to qualify as certified massage establishments in accordance with this chapter, the owner or operator of the massage establishment must provide to the permit administrator copies of valid, unexpired, unrevoked CAMTC certificates for each person the massage establishment will employ or contract with for purposes of performing massage, and a copy of the owner or operator’s valid, unexpired and unrevoked CAMTC certificate, if applicable, when applying for a city business license. For massage establishments providing massage services within the city to qualify as certified sole proprietorships in accordance with this chapter, the owner or operator of the massage establishment must provide to the permit administrator a copy of his or her valid, unexpired and unrevoked CAMTC certificate when applying for a city business license. Owners and operators of massage establishments providing massage services within the city must verify that the establishment meets the requirements for a certified massage establishment in accordance with this chapter by completing the city form provided by the permit administrator for that purpose.

B.    For massage establishments providing massage services within the city to qualify as certified massage establishments in accordance with this chapter, owners and operators who own five percent or more of the massage establishment and that do not have valid, unexpired and unrevoked CAMTC certificates must also provide the following background information:

1.    For owners or operators that are corporations, the names and residence addresses of each of the officers and directors of the corporation and of each stockholder owning more than five percent of the stock of the corporation;

2.    For owners or operators that are partnerships, the names and residence addresses of each of the partners, including limited partners;

3.    All previous residential addresses (if any) for the five years immediately prior to the present address of owners or operators;

4.    Written proof that individual or partnership owners or operators are over the age of eighteen years;

5.    For sole proprietorships or partnership owners or operators, the height, weight, color of eyes and hair, and sex of each proprietor or partner;

6.    Two portrait photographs at least two inches by two inches for each owner or operator;

7.    Business, occupation, or employment of the owner or operator for the preceding five years;

8.    The owner or operator massage or similar business history, including, but not limited to, whether or not such person, in previously operating in the city or another city or state under permit, has had such permit revoked or suspended and the reason, and the owner or operator’s business activity or occupation subsequent to the suspension or revocation;

9.    The name and address of the owner and lessor of the real property upon which the massage establishment will be operated and a copy of the lease or rental agreement;

10.    The information required by Sections 8.38.060(I) through (R) for each owner and operator; and

11.    Such other identification and information necessary to discover the truth of the required background information, including fingerprints and additional photographs of any owner or operator.

C.    Upon receipt of completed applications, the permit administrator will review applications for compliance of the establishment with applicable codes and regulations administered by the city police department, and, as appropriate, refer applications for review by other departments such as the building, fire, and development departments for review of application materials, inspection of the premises, and other appropriate review to determine compliance of the establishment with applicable codes and regulations.

(Ord. 2473 NCS §1 (part), 2013.)

8.38.080 Permitted massage establishment requirements.

A.    It is unlawful for any owner or operator of a massage establishment, except for owners and operators of massage establishments that qualify as certified massage establishments in accordance with Section 8.38.070, to provide or permit to be provided massage services within the city unless the massage establishment qualifies as a permitted massage establishment in accordance with this section.

B.    For massage establishments providing massage services within the city to qualify as permitted massage establishments, each person the massage establishment will employ or contract with for purposes of performing massage, and the owner or operator, if applicable, that does not have a valid, unexpired, unrevoked CAMTC certificate must have a valid, unexpired, unrevoked massage permit issued in accordance with Section 8.38.100 when applying for a city business license. Owners and operators of massage establishments providing massage services within the city must verify that the establishment meets the requirements for a permitted massage establishment in accordance with this section by completing the city form provided by the permit administrator for that purpose.

C.    For massage establishments that are providing massage services within the city to qualify as permitted massage establishments in accordance with this section, owners and operators of the massage establishment that do not have valid, unrevoked CAMTC certificates must provide the background information specified in Section 8.38.060(C).

(Ord. 2473 NCS §1 (part), 2013.)

8.38.090 Fee required.

All applications for a massage permit must be accompanied by payment of the applicable fee established pursuant to this chapter, no part of which shall be refundable. The fee will be established from time to time by resolution of the city council and include amounts intended to cover the city’s costs of: processing, investigation, issuance, renewal, inspection, enforcement and administration of the permit requirements contained in this chapter, including but not limited to city staff time and costs and attorney’s fees and costs. (Ord. 2473 NCS §1 (part), 2013.)

8.38.100 Issuance or denial of massage permits.

The permit administrator will issue a massage permit if upon investigation and the reports filed it is found:

A.    Neither the applicant nor any person or entity subject to investigation in connection with the application pursuant to Section 8.38.060 has been convicted, pled guilty, or pled nolo contendere in a court of competent jurisdiction to any offense listed in Sections 8.38.060(I) through (O) and is not required to register as a sex offender; and

B.    Neither the applicant, including applicant as a member of a corporation or partnership, nor a former employer of the applicant while so employed, has ever been subjected to an abatement proceeding under Sections 11225 through 11235 (Red Light Abatement Act) of the California Penal Code or any similar provisions of law in a jurisdiction outside the state of California; and

C.    The applicant has not had any massage establishment, massage professional license or permit that was issued within the state of California revoked; and

D.    The applicant possesses the educational requirements set forth in Section 8.38.060(G); and

E.    The operation, as proposed by the applicant, if permitted, would comply with all applicable laws, including, but not limited to, the city’s building, zoning, and health regulations; and

F.    The applicant complies with all provisions of this chapter including the affidavit requirement in Section 8.38.060(F); and

G.    The applicant has made no false, misleading, or fraudulent statement in the permit application or any other document required by the city in conjunction therewith.

Otherwise, the permit will be denied. Notification of and reason(s) for massage permit denial will be sent to the applicant by mail. (Ord. 2473 NCS §1 (part), 2013.)

8.38.110 Renewal of massage permit; renewal fee.

A.    Every massage permit issued or renewed shall have a term of up to two years, and all massage permits shall expire on June 30th of the second year following issuance or renewal. Application for renewal of a massage permit shall be made at least thirty days before its expiration upon a form provided by the city. If the information provided by the applicant for a prior application or renewal is no longer complete and/or accurate, the applicant must provide all information necessary to update, add to or modify the information so that it is accurate.

B.    The massage permit renewal application must be accompanied by a renewal fee as set from time to time by resolution of the city council. No part of renewal fee will be refundable. The renewal fee is intended to cover the city’s costs of processing, investigation, renewal, inspection, enforcement and administration of the permit requirements contained in this chapter, including but not limited to staff time and costs and legal fees and costs.

C.    Prior to the issuance of the renewal permit, the massage establishment may be subject to physical or record inspections by permit administrator, as well as by the building department, fire, and community development departments of the city for the purpose of assuring compliance with this chapter and applicable city, state or federal law.

D.    Each renewal application must be accompanied by a list of all massage professionals employed at the massage establishment and copies of any CAMTC certificates or massage permits for the employees and/or the massage establishment owner(s) and/or operators.

(Ord. 2473 NCS §1 (part), 2013.)

8.38.120 Massage establishment annual registration and notification of changes.

A.    Every massage establishment must, at the time of application for and/or renewal of a business license, provide to the city manager or his/her designee a complete list of all persons providing massage at or in connection with the massage establishment, whether on the massage establishment premises or otherwise, and provide copies of CAMTC certificates or massage permits for each such person.

B.    Within five business days of any change in address or ownership of the massage establishment, every massage establishment owner or operator must provide written notice of the changes to the city manager or his/her designee.

C.    Within fifteen business days of hiring a new massage professional, the owner or operator of the massage establishment must provide a copy of the massage professional’s CAMTC certificate or massage permit to the city manager or his/her designee. The requirement to provide copies of CAMTC certificates or massage permits does not affect the requirement to maintain evidence on the premises of the massage establishment that the massage professionals employed or retained by the massage establishment have CAMTC certificates or massage permits.

D.    Massage establishment owners and operators have a continuous duty to provide written notice to the city when massage establishment employees or contractors have a CAMTC certificate revoked or suspended.

(Ord. 2473 NCS §1 (part), 2013.)

8.38.130 Certified and permitted massage establishment operations.

Every certified and permitted massage establishment must comply with the following operating requirements:

A.    The owner or operator must maintain a register of all persons employed as massage professionals and all massage professional contractors used and copies of CAMTC certificates or massage permits for each massage professional. The register must be available for inspection at all times during regular business hours.

B.    The massage establishment may provide massage services only between the hours of seven a.m. and ten p.m.

C.    A list of services available and the cost of such services must be posted in an open, public place on the premises of the establishment. The list of services must describe all of the services available in readily understandable language. No owner, operator, responsible managing employee, manager, or supervisor may permit and no massage professional may offer to perform any services other than those posted.

D.    During all times that he/she is performing or offering to perform massage services in a massage establishment, every massage professional must wear a badge that identifies his/her first or last name. Upon receipt of a request or complaint by a patron, massage professionals must advise the patron of the full name of the massage establishment through which the massage services were obtained and the contact information for the CAMTC or the city.

E.    No person may enter, or be or remain, in any part of a massage establishment while in possession, consuming, or using any alcoholic beverage or drugs except pursuant to a lawfully issued prescription for such drugs. Massage establishment owners, operators, responsible managing employees, managers and supervisors may not permit any person to enter or remain upon the massage establishment premises in violation of this provision.

F.    No massage professional may offer or engage in specified sexual activities as part of his/her massage services. No massage establishment may offer or permit specified sexual activities as part of the massage services provided by the massage establishment or on the massage establishment premises.

(Ord. 2473 NCS §1 (part), 2013.)

8.38.140 Sanitation and safety requirements.

The city council finds that the requirements of this section are reasonable health and safety requirements for massage establishments and massage professionals. The requirements of this section apply to all certified and permitted massage establishments and all massage professionals providing massage services in the city, unless otherwise specified.

A.    All massage establishments are subject to periodic inspection by the city for safety of the structure and the compliance of plumbing, ventilation, heating, sanitation and other facilities with applicable codes and regulations. The walls must be clean and painted with an approved washable mold resistant paint in all rooms where water or steam baths are given. Floors must be free from any accumulations of dust, dirt, or refuse.

B.    Towels, sheets, linens, robes and all other items for personal use of operators and patrons must be clean, freshly laundered and not used for more than one patron. Heavy white paper may be substituted for sheets; provided, that the paper is used once for a person and then discarded into a sanitary receptacle.

C.    All locker facilities provided for the use of patrons must be fully secured for the protection of the patron’s valuables, and the patron must be given control of the key or other means of access.

D.    All main external front entrance doors into the massage establishment and all internal doors leading to massage areas must remain unlocked during the business hours of the massage establishment, unless there is no staff available to assure security for clients and massage professionals who are behind closed doors.

(Ord. 2473 NCS §1 (part), 2013.)

8.38.150 Inspection by city officials.

The investigating officials of the city, and the Sonoma County health officer, will have the right to enter massage establishment premises from time to time during regular business hours for the purpose of making reasonable inspections to enforce compliance with this chapter, or other building, fire, electrical, plumbing, health, or penal regulations. A warrant will be obtained whenever required by law. (Ord. 2473 NCS §1 (part), 2013.)

8.38.160 Massage establishment owner and operator responsibility for employee acts.

Massage establishment owners and operators will be responsible for the conduct of all employees, contractors, volunteers and other persons who provide massage on the premises or through arrangements with the massage establishment. All persons working in or for the massage establishment will be considered under the control of the massage establishment for the purposes of this chapter, including independent contractors and unpaid volunteers. Any act or omission of massage professionals constituting a violation of this chapter will be deemed to be the act or omission of the massage establishment for purposes of enforcing this chapter. (Ord. 2473 NCS §1 (part), 2013.)

8.38.170 Suspension or revocation of permits.

Any massage permit issued under this chapter is subject to suspension or revocation by the permit administrator for violation of any provision of this chapter, violations of city, state or federal law, or for any grounds that would warrant the denial of the issuance of the permit(s) in the first instance. (Ord. 2473 NCS §1 (part), 2013.)

8.38.180 Denial, suspension or revocation of permits—Appeal.

Any person or business entity aggrieved by any decision of the permit administrator with respect to the issuance or refusal to issue, suspension or revocation of a permit may appeal that action by filing a written notice of appeal with the city clerk. All appeals will be heard by an administrative hearing officer appointed by the city. Upon receipt of an appeal, the administrative hearing officer will fix a time and place for hearing such appeal. The city clerk will give written notice to the appellant of the time and place of hearing by causing the notice to be personally served or deposited in the United States mail at Petaluma, California, postage prepaid, addressed to the appellant at the address provided on the written notice of appeal. The administrative hearing officer will have authority to determine all questions raised on appeal. (Ord. 2473 NCS §1 (part), 2013.)

8.38.190 Changes in law.

When reference is made in this chapter to any local law or regulation or to any state or federal statute, regulation or other law, the reference includes any subsequent amendment or superseding provision. (Ord. 2473 NCS §1 (part), 2013.)

8.38.200 Enforcement and remedies.

Any violation of this chapter is unlawful and a public nuisance. Provisions of this chapter are enforceable pursuant to Chapters 1.10 through 1.16 or by any other judicial or administrative penalties and remedies available to the city under applicable local, state or federal law. In addition to all other legal remedies provided for in this code, the operation of any massage establishment and/or the provision of massage by any person in violation of this chapter is deemed a public nuisance and may be enjoined by the city. Each instance of a violation of this chapter, including each day of a continuing violation by a massage establishment or massage professional, constitutes a separate violation. The remedies provided by this chapter are not intended to preclude any other remedy available at law or in equity. (Ord. 2473 NCS §1 (part), 2013.)