Chapter 5.64
CERTIFIED MASSAGE PRACTITIONERS AND THERAPEUTIC MASSAGE BUSINESSES
Sections:
5.64.010 Definitions.
5.64.020 Required permits and exemptions.
5.64.030 Permit application.
5.64.040 Permit application investigation.
5.64.050 Permit fees.
5.64.060 Permit term and renewal.
5.64.070 Nonrefundable fees – Nontransferability.
5.64.080 Suspension or revocation.
5.64.090 Indemnification.
5.64.100 Operational requirements.
5.64.110 Violation of chapter.
5.64.120 Applicability to existing businesses.
5.64.130 Severability.
5.64.010 Definitions.
“Applicant” means every person who requests a massage practitioner’s permit.
“Certified massage practitioner,” “CMP” or “practitioner” means any person who administers a massage to another person for consideration and who meets both of the following requirements:
1. Is certified by the National Certification Board for Therapeutic Massage and Bodywork (or an equivalent board); and
2. Is a member in good standing of a qualified massage association.
“Chief of police” means the city’s police chief or his/her designee.
“Massage” means the intentional and skillful application of touch by a certified massage practitioner using a massage specialty, to enhance wellness.
“Massage practitioner’s permit” or “permit” means a permit granted by the city to an individual to provide massage services within the city as a certified massage practitioner.
“Massage specialty” means a legitimate, recognized massage/bodywork method of applying pressure, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus, or other appliances or devices, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations.
“Owner” or “operator” means every person, firm, association, partnership, corporation or other entity having any interest, legal or equitable, in any therapeutic massage business or massage practitioner’s permit.
“Permittee” means a person who holds a valid massage practitioner’s permit.
“Qualified massage association” means an association the city has determined meets the following requirements:
1. Is considered a tax-exempt professional association recognized by the Internal Revenue Service under Section 501 of the IRS code;
2. Has established as a minimum education requirement for membership a certificate of completion of 500 hours from a state licensed school of massage which is devoted to a massage specialty with a state approved curriculum; or, has a written and practical equivalency test administered and overseen by its admissions committee or by a national certification program endorsed by the National Commission for Certifying Agencies, which may be considered in lieu of the minimum education requirement of 500 hours;
3. Requires participation and completion by members of a minimum number of hours of specified continuing education as a condition of continuing membership;
4. Has established rules of ethics and has enforcement procedures for the suspension and revocation of membership for those persons violating the rules of ethics; and
5. The association is open to members of the general public who meet the requirements for membership.
“Therapeutic massage business” or “business” means a place of business where massage is administered by a certified massage practitioner either as an accessory or primary use and for which a conditional use permit has been obtained pursuant to the requirements of PMC Title 18. [Ord. 1117 § 3, 1996.]
5.64.020 Required permits and exemptions.
A. No person shall provide massage services for compensation unless the person has applied for and obtained a massage practitioner’s permit pursuant to the requirements of this chapter.
B. No person shall own, operate or maintain, or permit the operation of a therapeutic massage business unless the owner and/or operator of the business have met the requirements of this chapter and have applied for and obtained a conditional use permit pursuant to Chapter 18.52 PMC.
Unless prohibited or otherwise regulated, massage services, when provided as an accessory use to a beauty parlor, barbershop, or health/fitness club, do not require a conditional use permit. No employee of such business shall provide massage services without meeting the requirements of this chapter.
C. Notwithstanding the requirement for a conditional use permit in subsection (B) of this section, a person may provide massage services as a home occupation provided the person is a certified massage practitioner and either: (1) the services are contracted as an accessory use by a beauty salon, barbershop, or health/fitness club and the services are performed on the business premises, or (2) the services are provided in the home or business of a client. No certified massage practitioner shall provide massage services for compensation in his or her home.
D. The provisions of this chapter shall not apply to the following:
1. Physicians, surgeons, chiropractors, osteopaths, nurses, physical therapists, or other health care professionals who are duly licensed by the state of California;
2. Those persons who are administering massage in the medical offices of and who are under the direct supervision of a licensed medical professional; or
3. Massage services provided in conjunction with a nonrecurring special event (e.g., health fair, medical seminars). [Ord. 1147 § 2, 1998; Ord. 1117 § 3, 1996.]
5.64.030 Permit application.
A. Any person desiring to provide massage services as a business or CMP in the city shall submit an application under penalty of perjury to the chief of police. The application shall include or be accompanied by the following:
1. The true name of the applicant, owner and operator;
2. The arrest record, if any, of the applicant, owner and operator;
3. Fingerprints and recent photographs of the applicant, owner and operator;
4. The date of the application;
5. The status of the applicant as being an individual, a sole proprietor, a partnership, a corporation or other business entity;
6. If the applicant is an individual, the residence and business address of the applicant;
7. If the applicant is not an individual, the name, residence and business address of each of the officers and directors or, if a partnership, the name, residence and business address of the partners;
8. Proof that the applicant is a certified massage practitioner;
9. Proof that the applicant is a member of a qualified massage association;
10. The applicant’s birth certificate or other acceptable proof that the applicant is over 18 years of age;
11. A photograph identification card (e.g., drivers’ license, state identification card, passport) of the applicant;
12. A statement of the applicant’s experience in the business of massage or other relevant experience;
13. A statement that the applicant understands that the application shall be considered by the city only after a full background investigation has been made by the chief of police;
14. A statement that the applicant understands and agrees that any business or activity conducted or operated under any permit issued under such application shall be operated in full conformity with all state and local laws and regulations, and that a violation of any such laws or regulations may render any permit subject to immediate suspension or revocation;
15. A statement that the applicant has read the provisions of this chapter and particularly the provisions of this section and understands and agrees to abide by all rules and regulations contained in this chapter;
16. A statement in a form acceptable to the city attorney that the applicant understands and agrees to be bound by the indemnity provisions set forth in this chapter. Furthermore, a statement by the applicant that it accepts all risks of any adverse public notice, publicity, embarrassment, criticism, financial loss or all other actions and consequences which may result from activities with respect to reviewing, processing, approving or disapproving any application, and that the applicant waives any claims for damages against the city, its agents, officials and employees resulting therefrom, other than damages resulting from the intentional wilful misconduct of the city, its agents, officials and employees; and
17. Any other information reasonably required by the chief of police.
B. In addition to the requirements contained in PMC Title 18 and subsection (A) of this section, an applicant desiring to own or operate a therapeutic massage business in the city shall also provide the following additional information:
1. A statement of the nature and character of the business and of any other business conducted or proposed to be conducted at the same location, if applicable;
2. A complete description and floor plan of the business premises;
3. A description of any other business conducted or proposed to be conducted at the same location;
4. An application for a conditional use permit in the form and substance required by PMC Title 18; and
5. A copy of any lease (including any agreement with the owner of the underlying fee interest in the property) that the applicant has entered into for use of the property as a therapeutic massage business, which document shall be confidential and shall not be open to public inspection. [Ord. 1117 § 3, 1996.]
5.64.040 Permit application investigation.
Upon receipt of a completed application for a permit, the chief of police shall investigate the applicant, owner and/or operator. Within 45 days of receipt of a completed application, the chief of police shall, in his/her sole discretion, grant, deny or conditionally approve the permit for any of the following reasons, without being limited thereto, or for any reason consistent with the general policy of this chapter:
A. The proposed business or activity would not be in compliance with federal, state or local laws and regulations;
B. Conviction of the applicant within the past five years of an offense involving lewd conduct; an offense involving the use of force or violence upon the person of another whether denominated as a misdemeanor or a felony; a violation of Penal Code Sections 220, 261, 288a, 314, 315, 316, 318, 647(a) or 647(b); any violation involving the sale of a controlled substance specified in Health and Safety Code Sections 11054, 11055, 11057, or 11058;
C. The applicant, owner or operator is presently under indictment or is the subject of a criminal complaint for any of the crimes described in subsection (A)(2) of this section;
D. Making or causing to be made any false or misleading statement in the application or as to any other information presented as part of the application process; or
E. That, in the opinion of the chief of police, granting of the permit will not be in the best interest of the community’s health, safety and welfare. [Ord. 1117 § 3, 1996.]
5.64.050 Permit fees.
In addition to any other fees authorized by this code, an application fee in an amount established by city council resolution shall accompany any application for a permit under this chapter. Such fee shall be nonrefundable and shall be retained by the city for the costs of investigation. [Ord. 1117 § 3, 1996.]
5.64.060 Permit term and renewal.
A. Each permit granted under this chapter shall expire at the end of the calendar year in the year it was issued or renewed.
B. A valid permit issued under this chapter, which has not been surrendered, suspended or revoked, may be renewed each year on the following terms and conditions:
1. An application for renewal of any permit shall be filed with the chief of police at least 90 days before expiration of the existing permit on a form approved by the chief of police;
2. An application for renewal shall contain a declaration under penalty of perjury on a form approved by the chief of police confirming and indicating:
a. Any change in individuals with whom the permittee has agreements pertaining to the permitted operation,
b. Any change in the owner or operator along with the full, true and correct names and addresses of every such new owner or operator,
c. If no changes have occurred from the previous renewal, the permittee shall so certify and attest;
3. If an application for renewal is not filed or the application fee is not paid, within the time specified herein, the permit shall be deemed surrendered upon the expiration date of the permit; and
4. The application fee for renewal of a permit under this chapter shall be established by city council resolution to cover the costs of processing renewal. [Ord. 1117 § 3, 1996.]
5.64.070 Nonrefundable fees – Nontransferability.
A. Any and all fees paid by the applicant shall become the absolute property of the city and shall not be refunded to any such applicant when such permit is issued, and such fees shall not be prorated in any manner whatsoever, and in the event of the cessation of such business, whether voluntary or involuntary, no refund of the fees shall be made whatsoever.
B. A permit granted under this chapter shall be nontransferable. Any transfer of the permit in violation of this section shall render the permit immediately null and void. [Ord. 1117 § 3, 1996.]
5.64.080 Suspension or revocation.
A. A permit is subject to revocation or suspension as provided in this chapter and/or upon a determination by the chief of police that any one of the grounds exist that would have been a basis for denial of the permit application under this chapter when applied for initially. A permit may also be revoked or suspended if the permittee, owner or operator of the business has:
1. Violated, permitted, allowed or caused the violation of any provision of this chapter, state or local law;
2. Permitted, allowed or caused any violation of any condition of approval imposed upon the issuance of such permit, or any other permit issued under this code;
3. Made any false, fraudulent or misleading statements or omissions as to a material fact on an application form, or as to any other information presented or required as part of the application process;
4. Failed to prevent the business from causing a substantial adverse impact on surrounding properties or persons, or on the community as a whole, due to the direct or indirect consequences of the business;
5. Failed to prevent the operation of the massage business from constituting or giving rise to a public nuisance; or
6. Transferred or caused to be transferred, an interest in the business operation or the permit.
B. Notwithstanding subsection (A) of this section, a permit is subject to an immediate temporary suspension for a period not to exceed five calendar days, pending an investigation by the police department, upon a determination by the chief of police of any one of the following:
1. The business is operating in such a manner as to constitute an immediate health and safety hazard to the public; or
2. The permittee, owner, operator and/or an employee of the business is the subject of a criminal investigation involving a sexually related crime including but not limited to prostitution, solicitation, and/or sexual assault or substance abuse.
C. Upon determining the existence of a condition stated in subsection (A) of this section or any other condition that is a basis for suspension or revocation of a permit under this chapter, the chief of police shall give notice of a hearing before the chief of police to the permittee. The notice shall be in writing and shall state the time, place, purpose, the grounds upon which the proposed action is based and shall require the permittee to show cause before the chief of police why the permit should not be suspended or revoked. The notice shall be sent to the permittee at least 30 days prior to the hearing by personal delivery or certified mail to the address listed on the permit application.
D. At the conclusion of the hearing, the chief of police may revoke or suspend the permit. The chief shall render a decision, accompanied by written findings upon which the decision is based, within 10 days after the hearing is concluded. A decision made by the chief of police may be appealed in writing to the city council within 10 days after the chief’s decision has been made. [Ord. 1117 § 3, 1996.]
5.64.090 Indemnification.
In addition to other indemnity requirements in this chapter, the permittee and the permittee’s successors, heirs, and assigns shall defend, indemnify and hold harmless the city, its agents, officials and employees from any claim, action or proceeding against the city, its agents, officials and employees arising out of or resulting from the negligence of the permittee or the permittee’s agents, employees or contractors in the operation of the therapeutic massage business or the administration of services as a certified massage practitioner. [Ord. 1117 § 3, 1996.]
5.64.100 Operational requirements.
A. All therapeutic massage businesses and CMP’s shall abide by the following operational requirements:
1. Any and all premises used by any person granted a permit pursuant to the provisions of this chapter shall be subject to inspection by the city at reasonable times to ensure compliance with the provisions of the permit, this chapter, this code, and state and federal laws;
2. Adequate rest room facilities shall be available for use by customers;
3. Towels, sheets and linens of all types and items for the personal use of the operators and clients shall be clean and freshly laundered and shall not be used for more than one person. Heavy white paper may be substituted for sheets provided such paper is used only once and then discarded;
4. The business may operate between the hours of 8:00 a.m. and 8:00 p.m.;
5. A CMP and/or any employee of the business shall be dressed in an appropriate professional manner at all times;
6. Each service offered and the price thereof shall be posted in a conspicuous public location in each massage business;
7. All signage shall comply with PMC Title 19. The term “certified massage therapist” may appear on an exterior window or wall sign; however, the word “massage” shall not be used in any other manner. No signs may be illuminated;
8. Every owner and/or operator where massage is administered shall report immediately to the chief of police any and all changes of ownership of the business and the hire of any certified massage practitioner;
9. The exterior windows of a business shall not be blacked out; and
10. The practitioner shall at all times display his or her massage practitioner’s permit in an open and conspicuous place on the premises of the business.
B. The city council reserves the right to adopt by resolution additional rules and regulations, consistent with the provisions of this chapter regarding massage services. Such rules shall become effective immediately upon adoption or upon issuance of the permit. [Ord. 1117 § 3, 1996.]
5.64.110 Violation of chapter.
No person shall violate a provision of this chapter or fail to comply with a provision of this chapter. A person who violates a provisions of this chapter is guilty of a misdemeanor. [Ord. 1117 § 3, 1996.]
5.64.120 Applicability to existing businesses.
The provisions of this chapter shall be applicable to persons now engaged in the therapeutic massage business, except for legal nonconforming uses with a valid business license, or providing services as a certified massage practitioner. Existing businesses shall conform with all provisions contained in this chapter within 90 days of the effective date of the ordinance codified in this chapter. All practitioners licensed before the effective date of the ordinance codified in this chapter shall have one year within which to meet all requirements contained herein. [Ord. 1117 § 3, 1996.]
5.64.130 Severability.
In the event any section or provision of this chapter is held invalid or unenforceable by a court of competent jurisdiction, the remaining sections or provisions shall not be affected. [Ord. 1117 § 3, 1996.]