Chapter 5.40
MASSAGE THERAPY REGULATIONS
Sections:
5.40.010 Purpose.
5.40.020 Definitions.
5.40.030 State certification.
5.40.040 Business registration.
5.40.050 Exemptions.
5.40.060 Health and safety requirements.
5.40.070 Physical facility and building code requirements.
5.40.080 Attire and physical hygiene requirements.
5.40.090 Inspection by government officials.
5.40.100 Owner and operator responsibility—Denial, revocation, restriction or suspension of business registration.
5.40.110 Remedies cumulative—Each day a separate offense.
5.40.120 Public nuisance.
5.40.130 Criminal penalties.
5.40.140 Civil injunction.
5.40.150 Inspections.
5.40.160 Zoning.
Prior legislation: Ords. 1228 and 1372.
5.40.010 Purpose.
It is the purpose and intent of this chapter to provide for the orderly regulation of massage therapists, massage practitioners and massage establishments in the interest of public health, safety and welfare by providing minimum sanitation and health standards for such establishments and by ensuring that persons offering services therein possess the minimum qualifications necessary to operate such businesses and to perform such services. (Ord. 1410 § 2 (part), 2009)
5.40.020 Definitions.
For the purposes of this chapter, the following words and phrases shall have the following meanings:
“Massage,” “massage therapy” and “bodywork” are used in this chapter interchangeably and mean the application of various techniques to the muscular structure and soft tissues of the human body, including, but not limited to, any method of pressure or friction against, or stroking, kneading, rubbing, tapping, compression, pounding, vibrating, rocking or stimulating of, the external surfaces of the body with the hands or with any object or appliance.
“Massage establishment” means any business, including a sole proprietorship, which offers massage therapy in exchange for compensation, whether at a fixed place of business or at a location designated by the patron.
“Massage practitioner” means any person to whom an MTO certificate has been issued pursuant to subdivision (b) of Section 4601 of the California Business and Professions Code.
“Massage therapist” means any person to whom an MTO certificate has been issued pursuant to subdivision (c) of Section 4601 of the California Business and Professions Code.
“Massage Therapy Organization” means the organization created pursuant to California Business and Professions Code Sections 4600 et seq.
“MTO certificate” means the certificate issued by the Massage Therapy Organization to massage therapists pursuant to California Business and Professions Code Section 4600 et seq. (Ord. 1410 § 2 (part), 2009)
5.40.030 State certification.
A. Any person practicing massage therapy in the City shall have a valid MTO certificate that is in full force and effect.
B. Notwithstanding subsection A of this section, any person who has in full force and effect a previously issued and valid permit from the City for a massage establishment shall obtain an MTO certificate prior to the expiration of their current valid City permit.
C. Massage establishments shall maintain on the premises and file at the City copies of or provide other evidence of the MTO certificates held by message therapists and massage practitioners, the persons providing massage therapy at that business. (Ord. 1410 § 2 (part), 2009)
5.40.040 Business registration.
A. Massage establishments shall obtain an annual business registration in accordance with Chapter 5.04 and pay a business registration fee sufficient to cover registration costs, in accordance with the registration fee schedule set forth in Chapter 5.04.
B. A massage establishment’s business registration may be suspended, revoked or restricted for violations of California Business and Professions Code Sections 4600 through 4620. Any appeal related to a suspension, revocation or restriction shall be conducted in accordance with Chapter 1.25.
C. Massage establishments shall notify the City of any intent to rename, change management or convey the business. (Ord. 1410 § 2 (part), 2009)
5.40.050 Exemptions.
The provisions of this chapter shall not apply to the following classes of individuals or businesses while engaged in the performance of their duties, provided sufficient documentation verifying exempt status is furnished to the Chief of Police:
A. Physicians, surgeons, chiropractors, osteopaths, nurses or any physical therapists who are duly licensed to practice their respective professions in the state of California.
B. Barbers, beauticians, cosmetologists and aestheticians who are duly licensed under the laws of the state of California while engaging in practices within the scope of their licenses, except that this provision shall apply solely to the massaging of the neck, face, scalp, feet and lower limbs up to the knees, and hands and arms of the customers.
C. Hospitals, nursing homes, sanatoriums, or any other health facilities duly licensed by the state of California.
D. Accredited high schools, junior colleges, and colleges or universities whose coaches and trainers are acting within the scope of their employment.
E. Trainers of amateur, semiprofessional or professional athletes or athletic teams while engaging in their training responsibilities for and with athletes.
F. Registered schools of massage, as defined in Section 4600 of the California Business and Professions Code. (Ord. 1410 § 2 (part), 2009)
5.40.060 Health and safety requirements.
The following health and safety requirements shall be applicable to all massage establishments:
A. The entrance door allowing access to the massage establishment shall remain unlocked during business hours. Doors to dressing rooms and treatment rooms shall open inward and may not be locked. Separate dressing rooms and toilet facilities complying with the city building code shall be provided for each sex. The premises shall be maintained in a clean and sanitary condition.
B. No massage establishment may provide massage therapy between the hours of ten p.m. and seven a.m.
C. No massage establishment shall have more than ten massage therapists or practitioners employed or practicing at the business premises.
D. The business or establishment shall at all times be equipped with an adequate supply of clean, sanitary towels, coverings and linens, and all massage tables shall be covered with a clean sheet or other clean covering for each patron. After a towel, covering or linen has once been used it shall be deposited in a closed receptacle and not used until properly laundered and sanitized. Towels, coverings and linens shall be laundered either by regular commercial laundering or by a noncommercial laundering process which includes immersion in water at least one hundred forty degrees Fahrenheit for not less than fifteen minutes during the washing or rinsing operation. Clean towels, coverings and linens shall be stored in closed, clean cabinets when not in use.
E. All massage therapy rooms or cubicles, wet and dry heat rooms, toilet rooms, shower compartments, and hot tubs and pools shall be thoroughly cleaned and disinfected as needed, and at least once each business day the premises are open and such facilities are in use. All bathtubs shall be thoroughly cleaned and disinfected after each use.
F. All liquids, creams, or other preparations used on or made available to patrons shall be kept in clean and closed containers. Powders may be kept in clean shakers. All bottles and containers shall be distinctly and correctly labeled to disclose their contents. When only a portion of a liquid, cream or other preparation is to be used on or made available to a patron, it shall be removed from the container in such a way as not to contaminate the remaining portion.
G. No invasive procedures shall be performed on any patron. Invasive procedures include, but are not limited to: (1) application of electricity which contracts the muscle; (2) application of topical lotions, creams, or other substances which affect living tissue, such as chemical peel preparations or bleaches; (3) penetration of the skin by metal needles; (4) abrasion of the skin below the nonliving, epidermal layers; (5) removal of skin by means of any razor-edged instrument or other device or tool; and (6) any needle-like instrument which is used for the purpose of extracting skin blemishes and other similar procedures.
H. All bathrobes, bathing suits and/or other garments that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be laundered after each use pursuant to subsection D of this section.
I. All combs, brushes, and/or other personal items of grooming or hygiene that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be fully disinfected after each use.
J. No patrons shall be allowed to use any shower facilities of the business or establishment unless such patrons are wearing slip-resistant sandals or flip-flops while in the shower compartment. All footwear such as sandals or flip-flops that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be fully disinfected after each use.
K. The patron’s genitals, pubic area, anus, and female patrons’ breasts below a point immediately above the top of the areola must be fully draped at all times while any employee of the business or establishment is in the massage therapy room or cubicle with the patron. No massage therapy shall be provided to a patron that results in intentional contact or occasional and repetitive contact with the genitals, anus, or areola of a patron. (Ord. 1410 § 2 (part), 2009)
5.40.070 Physical facility and building code requirements.
The following physical facility and building code requirements shall be applicable to all nonexempt massage businesses or establishments, and to all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code:
A. Except when there is no staff available to assure security for massage therapy patrons and staff who are behind closed doors, no massage therapy may be carried on behind locked, closed doors.
B. All doors to dressing rooms, toilet rooms and massage therapy rooms or cubicles shall open inward and shall be self-closing. Draw drapes, curtain enclosures, or accordion-pleated closures in lieu of doors are acceptable on all inner dressing rooms and massage therapy rooms or cubicles.
C. Minimum lighting equivalent to at least one forty-watt light shall be provided in each massage therapy room or cubicle.
D. A massage table shall be used for all massage therapy, with the exception of Thai, shiatsu, and similar forms of massage therapy, which may be provided on a padded mat on the floor, provided the patron is fully attired in loose clothing, pajamas, scrubs or similar style of garment. The tables should have a minimum height of eighteen inches. Beds, floor mattresses and waterbeds are not permitted on the premises of the business or establishment.
E. All locker facilities that are provided for the use of patrons shall be fully secured for the protection of the patron’s valuables, and the patron shall be given control of the key or other means of access.
F. The business or establishment shall comply with the following state building standards as adopted in the Municipal Code:
1. Have a system of adequate ventilation in accordance with the provisions of Section 705 of the Uniform Building Code of 1982, as referenced in Part 2, Chapter 7 of the matrix adoption tables, of Title 24 of the California Code of Regulations.
2. Have a supply of hot and cold running water in accordance with Part 5, Section 1001(d)(1), of Title 24 of the California Code of Regulations.
3. Have a supply of potable drinking water in accordance with Part 5, Section 1001(d)(3), of Title 24 of the California Code of Regulations.
4. Provide hand washing facilities in accordance with Part 5, Section 1001(d)(2), of Title 24 of the California Code of Regulations.
5. Provide public toilet rooms in accordance with Part 5, Sections 910(b) and 910(c), and Table No. C-1, of Title 24 of the California Code of Regulations.
G. The massage therapists, massage practitioners and massage establishments shall submit any change of address for purposes of providing notice.
H. Proof of massage malpractice insurance in the sum of no less than one million dollars shall be provided to the Chief of Police or his representative. (Ord. 1410 § 2 (part), 2009)
5.40.080 Attire and physical hygiene requirements.
The following attire and physical hygiene requirements shall be applicable to all massage therapists and massage practitioners who are employed or retained by a non-exempt massage business or establishment, or by a massage business or establishment described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code:
A. All persons shall be clean and wear clean and sanitary outer garments at all times. All outer garments shall be of a fully opaque, nontransparent material and provide complete covering from at least the mid thigh to two inches below the collarbone. The midriff may not be exposed.
B. All persons shall thoroughly wash their hands with soap and water or any equally effective cleansing agent immediately before providing massage therapy to a patron. No massage therapy shall be provided upon a surface of the skin or scalp of a patron where such skin is inflamed or broken (e.g., abraded, cut) or where a skin infection or eruption is present.
C. No person afflicted with an infection or parasitic infestation capable of being transmitted to a patron shall knowingly provide massage therapy to a patron, or remain on the premises of a massage business or establishment while so infected or infested. Infections or parasitic infestations capable of being transmitted to a patron include, but are not limited to: (1) cold, influenza or other respiratory illness accompanied by a fever, until twenty-four hours after resolution of the fever; (2) streptococcal pharyngitis (strep throat), until twenty-four hours after treatment has been initiated and twenty-four hours after resolution of fever; (3) purulent conjunctivitis (pink eye), until examined by a physician and approved for return to work; (4) pertussis (whooping cough), until five days of antibiotic therapy have been completed; (5) varicella (chicken pox), until the sixth day after onset of rash or sooner if all lesions have dried and crusted; (6) mumps, until nine days after onset of parotid gland swelling; (7) tuberculosis, until a physician or local health department authority states that the person is noninfectious; (8) impetigo (bacterial skin infection), until twenty-four hours after treatment has begun; (9) pediculosis (head lice), until the morning after first treatment; and (10) scabies (crabs), until after treatment has been completed. Blood-borne diseases, such as HIV/AIDS and hepatitis B (HBV), shall not be considered infectious or communicable diseases for the purpose of this subsection. (Ord. 1410 § 2 (part), 2009)
5.40.090 Inspection by government officials.
A. All nonexempt massage businesses or establishments, and all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, shall permit representatives of the county health department, the City of San Carlos Police Department, Fire Department, Community Development Department, and/or other city or county departments or agencies, to conduct a reasonable inspection of the public areas of and areas otherwise open to plain view on or within the premises, to the extent allowed by law and during the regular business hours of the business or establishment, for the purpose of ensuring compliance with state and local law, including, but not limited to, Chapter 10.5 (commencing with Section 4600) of the California Business and Professions Code, the requirements of this chapter, or other applicable fire and health and safety requirements.
B. All massage therapists and massage practitioners shall provide their full, true name, and other names used, date of birth, California driver’s license number or California identification number, Social Security number, present residence address, telephone number, their sex, height, weight, color of hair, and color of eyes. Such other identification and information shall be provided as required by the Chief of Police or his representative, necessary to confirm the identity of those claiming to hold a valid MTO certificate.
C. All massage therapists, massage practitioners and establishments shall provide a complete definition of all services to be provided.
D. All massage therapists, massage practitioners and massage establishments shall notify the Chief of Police of any intention to rename, change management, or convey the massage business or establishment to another person or entity.
E. Nothing in this section shall be deemed to prohibit the above-described government officials from pursuing any and all available legal remedies to secure entry into and inspection of the premises of the business or establishment if such entry is refused, or for any other reason allowed by law.
F. It is a violation of this chapter for the business or establishment to prohibit or interfere with such lawful inspection of the premises at any time it is open for business. (Ord. 1410 § 2 (part), 2009)
5.40.100 Owner and operator responsibility—Denial, revocation, restriction or suspension of business registration.
The following provisions shall apply to all nonexempt massage businesses or establishments, and all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code:
A. For the purpose of enforcement of the requirements of this chapter, all owners and operators of the business or establishment shall be responsible for the conduct of all of its employees, agents, independent contractors or other representatives, while on the premises of the business or establishment or providing massage therapy.
B. Notwithstanding Chapter 5.04 of this code, the city may:
1. Require the business or establishment in its application for a business registration, or for the renewal of a business registration, to provide relevant information to the activities of the business or establishment regulated by this chapter;
2. Make reasonable investigations into the information so provided;
3. Charge a business registration fee sufficient to cover the costs of the business licensing activities regulated by this chapter; and
4. Deny, revoke, restrict or suspend a business registration for either of the following causes: (a) an employee, agent, independent contractor or other representative of the business or establishment has committed a violation of this chapter, or of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business or Professions Code; or (b) the business or establishment has provided materially false information in its application for a business registration. (Ord. 1410 § 2 (part), 2009)
5.40.110 Remedies cumulative—Each day a separate offense.
Any person subject to this chapter who personally, or through an agent, employee, independent contractor or other representative, violates any provision of this chapter shall be guilty of a separate offense for each and every day during any portion of which any such violation is committed, continued or permitted by such person. All remedies provided herein shall be cumulative and not exclusive. (Ord. 1410 § 2 (part), 2009)
5.40.120 Public nuisance.
Any use or condition caused or permitted to exist in violation of any of the provisions of this chapter shall be and is hereby declared a public nuisance and, as such, may be abated or enjoined from further operation pursuant to the municipal code. (Ord. 1410 § 2 (part), 2009)
5.40.130 Criminal penalties.
Any person subject to this chapter who personally, or through an agent, employee, independent contractor or other representative, violates any provision of this chapter commits a misdemeanor. Any person convicted of a misdemeanor shall be subject to punishment by fine and or imprisonment to the maximum extent permitted by state law. (Ord. 1410 § 2 (part), 2009)
5.40.140 Civil injunction.
The violation of any provision of this chapter shall be and is hereby declared to be contrary to the public interest and shall, at the discretion of the city, create a cause for injunctive relief. (Ord. 1410 § 2 (part), 2009)
5.40.150 Inspections.
Massage establishments shall permit the city to conduct reasonable inspections during regular business hours to ensure compliance with state and local laws, including but not limited to this chapter and California Business and Professions Code Sections 4600 through 4620, or applicable fire and health and safety requirements. (Ord. 1410 § 2 (part), 2009)
5.40.160 Zoning.
Massage therapy and massage establishments shall be considered a personal service as defined in Section 18.08.615 for purposes of the zoning ordinance. (Ord. 1410 § 2 (part), 2009)