Chapter 5.40
MASSAGE SERVICES
AND MASSAGE ESTABLISHMENTS
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Sections:
5.40.010 Purpose and intent.
5.40.020 Definitions.
5.40.030 Permit required – Massage establishments and massage therapists.
5.40.040 Business tax requirement.
5.40.050 When a permit is not required.
5.40.060 Massage establishment permit application and fee.
5.40.070 Massage establishment operating requirements.
5.40.080 Massage establishment facilities regulations.
5.40.090 Inspection by officials.
5.40.100 Permits nonassignable.
5.40.110 Change of location or change in name.
5.40.120 Massage therapist – Permit and identification badge required.
5.40.130 Massage therapist permit application.
5.40.140 New massage therapists – Notification.
5.40.150 Renewal of permits – Massage establishments and massage therapists.
5.40.160 Application of regulations to existing massage establishments and massage therapists.
5.40.170 Prohibited conduct.
5.40.180 Suspension or revocation of massage establishment permit or massage therapist permit.
5.40.190 Procedure for revocation or suspension of massage establishment permit or massage therapist permit.
5.40.010 Purpose and intent.
(a) Purpose.
(1) In enacting these regulations the City of Santa Clara City Council ("City Council") recognizes that massage is a viable professional field offering the public valuable health and therapeutic services.
(2) It is the purpose and intent of the City Council that the operation of massage establishments and persons offering massage be regulated in the interests of public health, safety, and welfare by providing minimum building, sanitation, and health standards and to ensure that persons offering massage shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered.
(3) It is the intent of this chapter to enact regulations to insure that those offering massage services are qualified and trained and can be expected to conduct their work in a lawful and professional manner. The City Council finds that existing controls have not satisfactorily addressed or regulated serious police problems, nor have the existing controls regulated the profession so as to discourage the use of the profession for objectionable and illegal purposes.
(b) Conflicts With Other Provisions of This Code. In the event of any conflicts or inconsistencies between the provisions of this chapter and the provisions of any other chapter(s) of this Code, the provisions of this chapter shall control, unless to do so would be inconsistent with the stated purpose of this chapter.
(c) Responsibility for Enforcement. The primary responsibility for enforcement of the provisions of this chapter shall be vested in the Chief of Police. (Ord. 1685 § 2, 2-27-96. Formerly § 18-36).
5.40.020 Definitions.
Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases used in this chapter:
(a) Reserved for future use.
(b) Reserved for future use.
(c) "C" definitions:
(1) "Chief of Police" means the elected Chief of the Santa Clara Police Department, or his/her duly authorized agents and representatives.
(2) "City Manager" means the City of Santa Clara's City Manager, or his/her duly authorized agents and representatives.
(d) "D" definitions:
(1) "Days" means calendar days, unless specified differently.
(e) Reserved for future use.
(f) Reserved for future use.
(g) Reserved for future use.
(h) Reserved for future use.
(i) Reserved for future use.
(j) Reserved for future use.
(k) Reserved for future use.
(l) "L" definitions:
(1) "License" means a tax certificate obtained from the municipal services/business tax division of the Finance Department to operate a massage establishment and/or provide massage service as required by this chapter.
(m) "M" definitions:
(1) "Massage" means any method of friction against, pressure on, 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.
(2) "Massage establishment" means any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, joint venture or combination of individuals engages in, conducts, carries on or permits to be engaged in, conducted or carried on, for consideration, massages, baths or health treatments involving massages or baths as regular functions.
(3) "Massage therapist" or "holistic health practitioner" means any person who administers massages, baths, or nonmedical health treatments involving massage, or any nonmedical health care therapy using massage as the principal therapeutic approach in caring for clients, to another person for any consideration whatsoever.
(n) Reserved for future use.
(o) Reserved for future use.
(p) "P" definitions:
(1) "Permit" means the City-issued permit to engage in the business activity of operating a massage establishment or the permit to engage in the activities of a massage therapist. Both permits shall be obtained through the process required by this chapter. Unless specifically provided otherwise, permits are not transferable.
(2) "Permittee" means a person, as defined hereinbelow, who has obtained a massage establishment permit or a massage therapist permit. In the context of a massage establishment permit, permittee shall include the owner, operator, manager, and/or responsible, managing officer/employee. The term "responsible, managing officer/ employee" includes partner(s).
(3) "Person" means any individual, firm, association, partnership, corporation, joint venture or combination of individuals.
(q) Reserved for future use.
(r) "R" definitions:
(1) "Recognized school of massage" means any school or institution of learning which teaches the theory, ethics, practice, profession and work of massage, which school or institution of learning requires a residence course of study of not fewer than 200 hours to be given before the student shall be furnished with a diploma or certificate of graduation from such school or institution of learning following the successful completion of such course of study or learning, and which school has been approved pursuant to California Education Code Section 94311, or, if said school is not located in California, has complied with standards commensurate with those required in said Section 94311 and has obtained certification under any similar State certification program, if such exists. Any school or institution of learning offering or allowing correspondence course credit not requiring actual attendance at class, or courses of a massage therapist not approved by the California Department of Education shall not be deemed a "recognized school of massage."
(s) "S" definitions:
(1) "State or nationally chartered organization devoted to the massage specialty and therapeutic approach" means an organization which the Chief of Police determines meets each of the following requirements:
(A) The organization or association requires that its members meet minimum educational requirements. The educational requirements must include at least two hundred (200) classroom hours, or its equivalent, in anatomy, physiology, hygiene, sanitation, massage therapy and practice, and ethics of massage practice.
(B) The organization or association promotes participation in continuing education programs as a condition of continuing membership.
(C) The organization or association has established rules of ethics and has enforcement procedures for the suspension and revocation of membership of persons violating the rules of ethics.
(D) The organization is open to members of the general public meeting the requirements for membership on either a statewide or national basis, and the organization, in fact, maintains a membership which reflects substantial statewide or national participation by persons engaged in the business of therapeutic massage.
(t) Reserved for future use.
(u) Reserved for future use.
(v) Reserved for future use.
(w) Reserved for future use.
(x) Reserved for future use.
(y) Reserved for future use.
(z) Reserved for future use. (Ord. 1685 § 2, 2-27-96. Formerly § 18-37).
5.40.030 Permit required – Massage establishments and massage therapists.
It shall be unlawful for any person, as defined hereinabove in SCCC 5.40.020(p)(3), to engage in, conduct or carry on, or permit to be engaged in, conducted or carried on in or upon any premises within the city, the operation of a massage establishment or the function of a massage therapist without first having obtained a permit issued by the Chief of Police pursuant to the provisions hereinafter set forth. A permit shall be valid for 12 months from the date of issuance, unless revoked or suspended. (Ord. 1685 § 2, 2-27-96. Formerly § 18-38).
5.40.040 Business tax requirement.
A massage establishment and massage therapists that are independent contractors shall pay the required business license tax for such business and occupation. (Ord. 1808 § 1, 8-22-06; Ord. 1685 § 2, 2-27-96. Formerly § 18-39).
5.40.050 When a permit is not required.
The provisions of this chapter shall not apply to the following classes of individuals or businesses while engaged in the performance of their duties:
(a) Physicians, surgeons, chiropractors, osteopaths, nurses or any physical therapists (State-licensed professions or vocations) who are duly State-licensed to practice their respective professions in the State of California. The exemption provided by this section shall not apply to massage therapists.
(b) Barbers, beauticians, and cosmetologists 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 exemption from a City permit shall apply solely to the massaging of the neck, face and/or scalp of the customers.
(c) Hospitals, nursing homes, sanatoriums, or other any 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, semi-professional or professional athletes or athletic teams while engaging in their training responsibilities for and with athletes; and trainers working in conjunction with a specific athletic event such as road races, track meets, triathlons, biathlons or similar single-occurrence athletic or recreational events.
(f) Other single-event massage practice occurring within the workplace or similar business location where the massage shall be restricted to the shoulders, neck, face and/or scalp of the customer. (Ord. 1685 § 2, 2-27-96. Formerly § 18-40).
5.40.060 Massage establishment permit application and fee.
The following provisions shall apply to the permit application process:
(a) Any person, as defined hereinabove in SCCC 5.40.020(p)(3), desiring to obtain a permit to operate a massage establishment shall make application to the Chief of Police.
(b) Each application for a massage establishment permit shall be accompanied by a nonrefundable fee. The fee paid shall be to defray in part the cost of the investigation and report required by this chapter. This massage establishment permit application fee shall be determined from time to time by the City Council by resolution to properly reflect cost recovery adjustments it deems appropriate. A copy of the receipt for the nonrefundable fee shall accompany the application.
(c) The massage establishment permit application and fee required under this section shall be in addition to any license, permit, or fee required under any other section of this Code or other City law or regulation.
(d) The application and fee for a massage establishment permit does not authorize a massage establishment to operate until such permit has been granted and the business tax has been paid to the municipal services/business tax division of the Finance Department.
(e) Each applicant for a permit shall submit the following information under penalty of perjury:
(1) The full, true name under which the business will be conducted.
(2) The present or proposed address where the business is to be conducted.
(3) The applicant's full, true name, and other names used, date of birth, valid California driver license number (or California identification number), social security number (unless prohibited by law), present residence address and telephone number, gender, height, weight, color of hair, and color of eyes. Additionally, applicant shall provide such other identification and information as is deemed necessary by the Chief of Police in order to discover the truth of the matters required in the application.
(4) The previous two residences of the applicant and the inclusive dates at each address.
(5) The applicant's business, occupation, and employment history for seven years preceding the date of application and the inclusive dates of same. Applicant shall provide proof that within the seven years preceding submission of the application, the owner, operator, manager, and/or responsible managing officer/employee has not:
(A) Had a massage establishment, massage therapist, or other similar permit or license denied, suspended, or revoked by the City, or any other State or local agency;
(B) Engaged in conduct or operated a massage or similar establishment in a manner that would be grounds for denial, suspension, or revocation of a permit under this chapter; or
(C) Owned or managed a massage or similar establishment where persons required to be licensed were allowed to work without the required license or permit.
(6) A statement of the permit history of the applicant by identifying whether or not such person has ever held a professional or vocational license or permit issued by any agency, board, city, county, territory, or state; the date of issuance of such a permit or license; whether or not the permit or license is still in effect; if the permit or license is no longer in effect, was it revoked or suspended, and, if so, the reason(s) therefor.
(7) A statement that within the seven years preceding submission of the application, no injunction has been issued under the Red Light Abatement Law (Penal Code Section 11225 et seq.) against the applicant or against a business establishment where the applicant was a permittee or employee, and that the applicant has not been convicted in a court of competent jurisdiction of an offense involving:
(A) Conduct which requires registration under California Penal Code Section 290;
(B) Conduct which is a violation of the provisions of California Penal Code Sections 314, 315, 316, 318, 647(a) or (b);
(C) Crimes that are designated in Government Code Section 51032; or
(D) Any other crime involving dishonesty, fraud, deceit, violence or moral turpitude.
Convictions under the laws of other states or countries which proscribe the same or similar conduct as the afore-designated California crimes shall be considered. Convictions that have been expunged must be reported, and all injunctions for nuisances under Penal Code Section 11225 or similar laws must also be reported.
For purposes of this criminal conviction portion of the statement, if the applicant is a corporation, the statement shall apply to the stockholders holding more than five percent of the stock of that corporation, the officers, and/or directors. If the applicant is a partnership, the statement shall apply to all partners, both general and limited.
For purposes of this section, a plea of "nolo contendere" may also serve as the basis for the denial of a massage permit because the above-listed underlying offenses bear a substantial relationship to the qualifications, functions or duties of a massage therapist.
(8) A complete list of all services to be provided with definitions and/or descriptions attached.
(9) The name, address, and date of birth of each massage therapist or employee who is or will be employed at the massage establishment.
(10) The name and address of any massage business or other like establishment owned or operated by any person whose name is required to be given pursuant to this section.
(11) Acceptable written proof that the applicant is at least eighteen (18) years of age.
(12) Documentation to prove that the applicant has a lawful right to work in the United States.
(13) Corporations. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of that corporation.
(14) Partnerships. If the applicant is a partnership, the application shall set forth the names and residence address of each of the partners, including limited partners. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership as filed with the County Clerk. If one or more of the partners is a corporation, the provisions of subsection (e)(13) of this section pertaining to corporate applicants shall apply to the corporate partner.
(15) The corporation or partnership applicant shall designate one of its officers or general partners to act as its responsible, managing officer/employee. Such person shall complete and sign all application forms required of an individual applicant under this chapter. The corporation's or partnership's responsible, managing officer/ employee must, at all times, meet all of the requirements set for permittees by this chapter or the corporation or partnership permit shall be suspended until a responsible, managing officer/employee who meets such requirements is designated. If no such person is designated in writing within ninety (90) days of a change in the person previously identified, the corporation or partnership permit is deemed canceled and a new application for permit must be filed and processed.
(16) Upon request of the Chief of Police, the applicant shall be required to furnish fingerprints for the purpose of establishing identification. The fingerprints will be taken at a place designated by the Chief of Police. Any required fingerprinting fee shall be the responsibility of the applicant.
(17) Two passport style photographs of the applicant and the managing, responsible officer/employee shall be provided to the Police Department.
(18) A description of any other business to be operated on the same premises, or on adjoining premises, owned or controlled by the applicant.
(19) The name and address of the owner and lessor of the real property upon or in which the business is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the property that a massage establishment will be located on his/her property.
(20) Written authorization for the City, its agents and employees, to seek information and to conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant and the responsible, managing officer/employee.
(21) Proof of massage malpractice insurance in the sum of not less than one million dollars ($1,000,000.00) per massage therapist licensed, or to be licensed, at the massage establishment; this requirement can be satisfied by malpractice insurance being provided in the name of the individual massage therapist.
(22) The applicant shall advise the City in writing of any change of address or change in fact(s) represented to City which may occur during the City's processing of the application for a massage establishment permit.
(23) A certificate of zoning compliance from the City's Director of Planning and Inspection that certifies that the premises of the massage establishment meets all applicable codes and regulations must be submitted prior to application approval. Any required inspection fees shall be the responsibility of the applicant. If the City's Director of Planning and Inspection finds that a use permit is required for the massage establishment, the applicant shall meet the requirements of Chapter 18.110 SCCC et seq. and Chapter 18.70 SCCC et seq.
(f) The Chief of Police has up to sixty (60) days after submission of all required information, including the required certificates of compliance, to investigate the application and the background of the applicant. Upon the completion of the investigation, the Chief of Police may grant the permit, with or without conditions, if, upon review of the requirements listed in subsections (e)(1) through (23) of this section, inclusive, all of the following are found:
(1) The required fee has been paid;
(2) The applicant has not made a material misrepresentation in the application;
(3) The permit as requested by the applicant would comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards; and
(4) The applicant complies with the requirements of this chapter.
(g) If, following investigation of the applicant, the Chief of Police cannot make the findings required in subsection (f) of this section, the application shall be denied by dated, written notice which sets forth the reasons for denial. (Ord. 1808 § 2, 8-22-06; Ord. 1685 § 2, 2-27-96. Formerly § 18-41).
5.40.070 Massage establishment operating requirements.
No person shall engage in, conduct, carry on, or permit to be engaged in, conducted, or carried on, any massage establishment activity or conduct unless each and all of the following requirements are met:
(a) Each person employed, or acting as a massage therapist, shall have a valid permit and/or badge issued by the Chief of Police which shall be on the massage therapist's person during working hours. It shall be unlawful for any owner, operator, manager, and/or responsible, managing officer/ employee to employ or permit a person to act as a massage therapist who is not in possession of a valid, unrevoked massage therapist permit issued pursuant to this chapter.
(b) The possession of a valid massage establishment permit does not authorize the permit holder or any other person to perform work for which a massage therapist permit is required.
(c) Massage shall be provided or given only between the hours of 6:00 A.M. and 10:00 P.M. No massage establishment shall be open and no customer shall be in the establishment between 10:00 P.M. and 6:00 A.M.
(d) A list of services available and the cost of such services shall be posted in an open public place within the premises, and they shall be described in readily understandable language. No owner, operator, manager, and/or responsible, managing officer/employee shall permit, and no massage therapist shall offer or perform, any service other than those posted.
(e) The massage establishment permit and a copy of the permit of each and every massage therapist employed in the establishment shall be displayed in an open and conspicuous place on the premises.
(f) Every massage establishment shall keep a written record of:
(1) The date and hour of each service provided;
(2) The name of each patron and the service received; and
(3) The name of the massage therapist administering the service.
Said records shall be open to inspection to City officials, including, but not limited to the Police Department and the City Attorney's office, which is charged with enforcement of this chapter. These records may not be used by the permittee for any other purpose than as records of service provided, and they shall not be provided to other parties by the massage establishment or service. Said records shall be retained on the premises of the massage establishment business office for a period of not less than two years.
(g) Massage establishments shall at all times be equipped with an adequate supply of clean sanitary towels, coverings and linens. Clean towels, coverings and linens shall be stored in enclosed cabinets. Towels and linens shall not be used on more than one patron, unless they have first been laundered and disinfected. Disposable towels and coverings shall not be used on more than one patron. Soiled linens and paper towels shall be deposited in separate, approved receptacles.
(h) Wet and dry heat rooms, steam or vapor rooms or cabinets, toilet rooms, shower and bath rooms, whirlpool baths and pools shall be thoroughly cleaned and disinfected with a commercial disinfectant, as needed, but at least once each day the premises are open. Bathtubs shall be thoroughly cleaned with a disinfectant after each use. All walls, ceilings, floors, and other physical facilities for the establishment must be in good repair, and maintained in a clean and sanitary condition.
(i) Instruments utilized in performing massage shall not be used on more than one patron unless they have been sterilized using approved sterilization methods.
(j) All employees, including massage therapists, shall wear clean, nontransparent outer garments. Said garments shall not expose their genitals, pubic areas, buttocks, or chest.
(k) No person shall enter, be or remain in any part of a massage establishment while in possession of an open container of alcohol, or while consuming or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs. The owner, operator, manager, and/or responsible, managing officer/employee shall not permit any such person to enter or remain upon such premises.
(l) No massage establishment granted a permit under the provisions of this chapter shall place, publish or distribute or cause to be placed, published or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers that any service is available other than those services described in SCCC 5.40.020(m)(1), nor shall any massage establishment employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available other than those services as described in SCCC 5.40.020(m)(1).
(m) No massage may be carried on within any cubicle, room, booth or any area within a massage establishment which is fitted with a door capable of being locked. All doors to dressing rooms and treatment rooms shall open inward. Draw drapes, curtain enclosures, or accordion-pleated closures are acceptable on all inner dressing and treatment rooms in lieu of doors.
(n) A massage shall not be given unless the patron's genitals are fully covered.
(o) No massage establishment shall be open for business without at least one massage therapist on the premises at all times who is in possession of a current, unrevoked permit.
(p) A massage table or chair shall be used for massage. No mattresses shall be placed on the floor. This subsection (p) shall not apply to qualified Shiatsu and Thai massage therapists.
(q) No condoms shall be kept in the establishment unless they are the personal property of persons on-site, and they are for the individual's personal use.
(r) Unlicensed massage therapists and those persons other than scheduled customers shall not loiter, congregate or remain on the premises during the massage establishment's business hours. (Ord. 1685 § 2, 2-27-96. Formerly § 18-42).
5.40.080 Massage establishment facilities regulations.
Every massage establishment shall maintain facilities meeting the following requirements:
(a) Any signs shall be in conformance with the current ordinances of the City.
(b) Minimum lighting shall be provided in accordance with Article 220 of the National Electrical Code, and, in addition, at least one artificial light of not less than forty (40) watts shall be provided in each room or enclosure where massage services are performed on patrons.
(c) Minimum ventilation shall be provided in accordance with the Uniform Building Code.
(d) Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be provided.
(e) Hot and cold running water shall be provided at all times.
(f) Closed cabinets shall be provided for storage of clean linens.
(g) Adequate dressing, locker and toilet facilities shall be provided for patrons.
(h) A minimum of one wash basin for employees shall be provided at all times. The basin shall be located within or as close as practicable to the area devoted to performing of massage services. Sanitary towels shall also be provided at each basin.
(i) Pads used on any massage tables shall be covered with a durable, washable plastic or other acceptable waterproof material capable of being thoroughly cleaned and disinfected.
(j) Proof of compliance with all applicable provisions of the City Code shall be provided prior to the issuance of any permit. (Ord. 1685 § 2, 2-27-96. Formerly § 18-43).
5.40.090 Inspection by officials.
The City officials charged with investigating and enforcing compliance with this chapter, including, but not limited to the City's Police Department, Fire Department, and the City's Building Official, or their designees, shall have the right to enter the premises from time to time during regular business hours for the purpose of making reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing regulations, and to enforce compliance with applicable regulations, laws, and the provisions of this chapter. (Ord. 1685 § 2, 2-27-96. Formerly § 18-44).
5.40.100 Permits nonassignable.
No massage establishment permit may be sold, transferred or assigned by the permittee, or by operation of law, to any other person or persons; any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be deemed terminated and void, except for the following:
(a) If the permittee is a partnership and one or more of the partners should die or cease to be a partner, one or more of the surviving/remaining partners may acquire, by purchase or otherwise, the interest of the deceased/departed partner or partners without effecting a surrender or termination of such permit. An original partner must remain a partner for this exception. In each case the permittee shall thereafter be deemed to be the surviving/remaining partner(s); or
(b) If the permit is issued to a corporation, stock may be sold, transferred, issued, or assigned to stockholders who have been named on the application. If any stock is sold, transferred, issued, or assigned to a person not listed on the application as a stockholder, the permit shall be deemed terminated and void unless the new stockholders are identified within ten days of transfer and they meet all requirements under this chapter for stockholders. (Ord. 1685 § 2, 2-27-96. Formerly § 18-45).
5.40.110 Change of location or change in name.
The following is applicable to a change of location or a change of name:
(a) A change of location of a massage establishment may be approved by the Chief of Police, with the prior approval of the Director of Planning and Inspection and the Fire Chief, or their designated representatives, provided all ordinances and regulations of the City are complied with prior to the relocation or change of name. This may include applying for and receiving land use approvals, such as for a conditional use permit or variance.
(b) No permittee shall operate or conduct any massage establishment under any name or designation not specified in the approved permit.
(c) Any application for an expansion of a building or other place of business of a massage establishment shall require compliance with this chapter; no expansion of a nonconforming location shall be permitted. (Ord. 1685 § 2, 2-27-96. Formerly § 18-46).
5.40.120 Massage therapist – Permit and identification badge required.
No person shall engage in the business of massage or act as a massage therapist unless such person holds a valid massage therapist's permit issued by the City's Police Department. Each massage therapist permit holder shall be issued a photo identification badge from the City's Police Department which will also serve as a massage therapist permit. The permit holder shall display the massage therapist permit on his/her person during business hours. (Ord. 1685 § 2, 2-27-96. Formerly § 18-47).
5.40.130 Massage therapist permit application.
Each massage therapist shall be required to obtain a permit before administering massage. The procedure to obtain a massage therapist permit is as follows:
(a) Each applicant for a massage therapist permit shall make application to the Chief of Police.
(b) Each application for a massage therapist permit shall be accompanied by a nonrefundable fee. The fee paid shall be to defray in part the cost of the investigation and report required by this chapter. This massage therapist permit application fee shall be determined from time to time by the City Council by resolution to properly reflect cost recovery adjustments it deems appropriate. A copy of the receipt for the nonrefundable fee shall accompany the application.
(c) The massage therapist permit application and fee required under this section shall be in addition to any license, permit, or fee required under any other section of this Code or other City law or regulation.
(d) The application and fee required for a massage therapist permit does not authorize the applicant to provide massage until such permit has been granted.
(e) Each applicant for a massage therapist permit shall submit the following information and/or documents(s) under penalty of perjury:
(1) All information required by SCCC 5.40.060(e);
(2) A diploma or certificate of graduation from a two hundred (200)-hour resident course of instruction from either:
(A) A recognized school as defined in SCCC 5.40.020(r)(1); or
(B) An existing school or institution of learning outside the State of California together with (A) a copy of the school's approval by its State Board of Education and (B) a certified transcript of the applicant's school records showing date of enrollment, hours of instruction and graduation from a course having at least the minimum requirements prescribed by Title 5, Division 1 (entitled "State Department of Education"), Chapter 21 (entitled "Private Postsecondary Education Instructions"), Section 18800 et seq. of the California Code of Regulations; wherein the theory, method, profession and work of massage is taught.
(C) This chapter shall not include any conditional massage therapist permits until the required hours, certificate, or diploma are obtained.
(3) If the massage therapist will be employed at a fixed place of business, the massage establishment's full name, address and telephone number.
(4) Such other identification and information shall be provided as required by the Chief of Police, necessary to discover the truth of the matters specified and required in the application.
(5) Nothing contained herein shall be construed to deny the right of the Chief of Police to confirm the height and weight of the applicant or to take additional photographs.
(6) The applicant shall furnish fingerprints. Any required fingerprinting fees shall be the responsibility of the applicant. Fingerprinting shall be taken at a place designated by the Chief of Police.
(7) A certificate from a medical doctor licensed to practice in the State of California, including the physician's address and phone number, stating that the applicant has, within the thirty (30) days immediately preceding the date of application, been examined and found to be free of tuberculosis. Pursuant to Health and Safety Code Section 120975, and unless otherwise required by State or Federal law, nothing in this chapter shall require testing or disclosure as to whether or not an applicant is infected with the human immunodeficiency virus (HIV).
(8) Written authorization for the City, its agents and employees, to seek information and to investigate the truth of the statements set forth in the application and to investigate the background of the applicant.
(9) The massage therapist applicant has successfully passed a written examination administered by the Chief of Police wherein the applicant has been required to demonstrate a basic knowledge of anatomy, physiology, hygiene, and massage. Additionally:
(A) No applicant may take the test more than two times in a twelve (12)-month period.
(B) Applicants who have written proof of their successful completion of the National Certification Board for Therapeutic Massage and Bodywork exam or the American Massage Therapist Association exam will not be required to take the written exam.
(f) The Chief of Police has up to sixty (60) days after the submission of all required information, to investigate the application and the background of the massage therapist applicant. Upon the completion of the investigation, the Chief of Police may grant the permit, with or without conditions, if, upon review of the requirements listed in subsections (e)(1) through (9) of this section, inclusive, all of the following are found:
(1) The applicant has furnished an acceptable diploma or certificate of graduation from a recognized school;
(2) The applicant has furnished written proof from a recognized school that the minimum number of hours of instruction have been completed;
(3) The applicant has successfully passed the written examination test required by subsection (e)(9) of this section;
(4) The applicant, if an independent contractor, has provided the certificate of the business tax paid to municipal services/business tax division of the Finance Department as required by SCCC 5.40.040; and
(5) The applicant complies with the requirements of this chapter.
(g) If, following investigation of the applicant, the Chief of Police cannot make the findings required in subsection (f) of this section, immediately above, the application shall be denied by dated, written notice which sets forth the reasons for denial. (Ord. 1808 §§ 3, 4, 8-22-06; Ord. 1685 § 2, 2-27-96. Formerly § 18-48).
5.40.140 New massage therapists – Notification.
Notification to the City of new massage therapists shall be as follows:
(a) The holder of the massage establishment permit shall notify the Chief of Police, in writing, of the name and address of each person employed as a massage therapist at such establishment prior to the employee engaging in massage service to the public.
(b) The requirements of this section are in addition to the other provisions of this chapter. Nothing contained herein shall relieve the permittee of the responsibility of ascertaining, prior to employment, that said person has a current unrevoked massage therapist's permit. (Ord. 1685 § 2, 2-27-96. Formerly § 18-49).
5.40.150 Renewal of permits – Massage establishments and massage therapists.
Renewal of permits, both for massage establishments and massage therapists shall be as follows:
(a) Massage establishment and massage therapist permits shall expire on the one-year anniversary date of issuance, unless sooner suspended or revoked.
(b) At least thirty (30) days prior to expiration of the one-year permit period, holders of the respective permit(s) shall apply for renewal. If the renewal request is not timely submitted, upon expiration of the year period for the permit, the permit shall be deemed expired and no privilege to provide massage shall exist until a new application has been approved. New medical certificates shall be submitted. The application for renewal shall include a written statement, made under penalty of perjury, identifying changes, if any, from the information submitted at the time of the original permit application. (For example, new residential addresses, new telephone numbers, changes to pertinent criminal history shall be submitted.)
(c) Renewals shall be processed and investigated. The applicant is required to submit, under penalty, that information which has changed from the last application or renewal. Holders of massage establishment permits and/or massage therapist permits shall submit a new certificate each year as required by this section.
(d) A renewal fee shall be paid in a sum that shall be determined from time to time by the City
Council by resolution to properly reflect cost recovery adjustments it deems appropriate. (Ord. 1685 § 2, 2-27-96. Formerly § 18-50).
5.40.160 Application of regulations to existing massage establishments and massage therapists.
Pre-existing, legal permits for massage establishments and massage therapists shall be treated as follows:
(a) The provisions of this chapter shall be applicable to all persons and businesses whether the business was established before or after the effective date of this chapter, except that massage establishments legally in business prior to said effective date shall expire on the one-year anniversary date of its permit issuance, unless sooner suspended or revoked. Exemptions from the requirements of this chapter for duly authorized and legally existing nonconforming establishments may be done on a case by case basis.
(b) Massage therapists who have valid massage therapist permits shall have until the expiration of their current permit to apply for a massage therapist permit under the terms of this chapter, but shall otherwise comply with the regulations set forth herein within thirty (30) days. (Ord. 1685 § 2, 2-27-96. Formerly § 18-51).
5.40.170 Prohibited conduct.
Prohibited conduct shall include, but not be limited to the following prohibited conduct:
(a) It shall be unlawful for (i) any massage therapist, or other person present on the business premises, to massage the genital area of any patron or (ii) for any operator of a massage establishment to allow or permit such massage.
(b) It shall be unlawful for (i) any massage therapist to be other than fully clothed at all times in nontransparent clothing that does not expose their genitals, pubic area, buttocks or chest or (ii) for any operator of a massage establishment to allow or permit clothing that does not conform to this requirement.
(c) Duly licensed massage therapists may engage in off-site massage services when all of the requirements of SCCC 5.40.060 have been met. Massage therapists may not administer massage services in a private residence unless a bona fide medical request has been made in writing prior to the massage services. A bona fide medical need will be deemed appropriate when a licensed physician or chiropractor has given the client a written prescription for the massage services to be administered at the residence of the recipient of the massage.
(d) It shall be unlawful for any holder (permittee) of a massage establishment permit or holder of a massage therapist permit to violate any of the requirements of this chapter applicable to massage establishments and/or massage therapists. (Ord. 1685 § 2, 2-27-96. Formerly § 18-52).
5.40.180 Suspension or revocation of massage establishment permit or massage therapist permit.
The Chief of Police may revoke or suspend a massage establishment permit or massage therapist permit if any of the following are found:
(a) The holder of the permit does not possess the qualifications for the permit as required by this chapter;
(b) The holder of the permit has been convicted of any violation of the provisions of this chapter or any lesser included offense;
(c) The holder of the permit has made a material misrepresentation on the permit application or renewal; or
(d) The holder of the permit has operated the massage establishment in a manner (or has engaged in conduct as a massage therapist) which violates any of the provisions of this chapter, any conditions of the permit, or any of the laws which would have been grounds for denial of the permit.
For purposes of this section, the holder of the permit (permittee) in the massage establishment permit context shall include the managing, responsible officer/employee. Furthermore, the holder of the permit shall be responsible for those acts of employees and massage therapists which are done in the course and scope of their employment. The course and scope of employment is evidenced by a course of conduct occurring on the premises of the massage establishment. (Ord. 1685 § 2, 2-27-96. Formerly § 18-53).
5.40.190 Procedure for revocation or suspension of massage establishment permit or massage therapist permit.
Revocations and suspensions shall be administered as follows:
(a) Whenever the Chief of Police has reasonable cause to believe that grounds for the suspension or revocation of a permit exists, he/she shall give the holder of the permit written notice stating the alleged grounds for the suspension or revocation and the effective date of the suspension or revocation. This notice will be by certified mail, return receipt requested, sent to the address shown on the last application or renewal, or by personal service. The decision of the Chief of Police to revoke or suspend a massage establishment permit or massage therapist permit may be appealed to the City Manager, or designee. The notice shall provide the permit holder with information on the appeal process.
(b) Upon receipt of a request for an appeal hearing, the City Manager, or designee, shall conduct a hearing within forty-five (45) days of the request. The City Manager, or designee, shall notify the permit holder in writing of the date, time, and place of the hearing. The hearing shall not be less that ten days after the service of the notice of hearing by postage of the notice by certified mail, return receipt requested, or by personal service.
(c) At the hearing, both the holder of the permit and the Chief of Police shall have the right to appear and be represented by counsel and to present evidence and arguments which are relevant to the grounds for the appeal, as stated in the written grounds for the appeal hearing. Within ten working days of the conclusion of the hearing, the City Manager shall issue a written decision which states whether the decision of the Chief of Police is upheld, modified, or reversed; the length of any suspension, and the effective date of the suspension or revocation. The decision of the City Manager shall be served on the holder of the permit by certified mail, return receipt requested, or by personal service.
(d) The decision of the City Manager shall be final.
(e) The burden of proof is on the City in any hearing or other matter under this chapter. The City will be required to prove its case by the preponderance of evidence standard.
(f) Upon a written decision of the City Manager which suspends or revokes a permit, the holder of the permit shall surrender the permit to the Chief of Police immediately after service of the notice of the decision. (Ord. 1685 § 2, 2-27-96. Formerly § 18-54).