Chapter 9.20 MASSAGE THERAPY, MASSAGE BUSINESS OR ESTABLISHMENT

In enacting these regulations, the city council recognizes that massage is a viable professional field offering the public valuable health and therapeutic services. It is the purpose and intent of the city council that the operation of massage establishments, out-call massage services, and persons offering massage be regulated in the interests of the public health, safety, and welfare by providing minimum building sanitation and health standards and to ensure that persons offering massage shall possess the minimum qualification necessary to operate such businesses and to perform such services.

It is the intent of this chapter to enact regulations to ensure 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 the existing controls have not satisfactorily addressed or regulated serious police problems and regulated the profession so as to discourage the use of the profession for objectionable and illegal purposes. (Ord. 827 § 1(part), 2010).

9.20.020 Definitions.

For the purpose of this chapter, the following words and phrases shall have the following meanings unless it is apparent from the context that a different meaning is intended.

A. “Massage” means any rubbing, stroking, kneading, tapping, manipulation or use of friction or pressure, with the hand or any other part of the body or any instrument, upon the external parts of the body of another, whether or not accompanied by the use of heat, light, water, alcohol, oils, lotions, ointments or other chemicals or preparations, and whether or not accompanied by any sauna, tub, shower or cabinet bath, or hot or cold pack or any combination thereof.

B. “Massage business or establishment” means any business or establishment having a fixed place of business or at a location designated by the patron where any person for any consideration whatsoever performs or engages in any act of massage as defined in this section, whether or not other facilities or services are offered.

C. “Masseur” or “masseuse” or “independent massage therapist or practitioner” means any person who, for any consideration whatsoever, performs or engages in any act of massage as defined in this section.

D. “Out-call massage service” means any business, including one licensed as a massage establishment under the provisions of this chapter, which for any consideration whatsoever offers massage services not at a fixed location but at a location specified by the patron, whether or not other facilities or services also are offered. For the purposes of this chapter, an out-call massage service includes one that is located at the street address of any office, including a telephone answering and referral office, which arranges the referral of a masseur or masseuse to a location specified by the patron.

E. “Person” means an individual, partnership, firm, association, joint stock company, corporation or combination of individuals as a business venture of whatever form or character.

F. “Operator” means any person who supervises, manages, directs, organizes, controls or in any other way is responsible for or in charge of the overall operation, conduct or activities of a massage business or establishment.

G. “Owner” means any of the following persons:

1. The sole proprietor of a massage business or establishment. As used in this chapter, the term “sole proprietor” shall mean a massage business or establishment where the owner is the only person employed by that business or establishment to provide massage therapy;

2. Any general partner of a partnership that owns and operates a massage business or establishment; or

3. Any person who has a twenty percent or greater ownership interest in a corporation that owns and operates a massage business or establishment.

H. MTO Certificate. See “State certificate.”

I. “Certified massage therapist” or “CMT” means any person to whom a state certificate has been issued pursuant to subdivision (c) of Section 4601 of the California Business and Professions Code and who is engaged in the practice of massage therapy for compensation. As used in this chapter, the terms “masseur” or “masseuse” or “independent massage therapist or practitioner” shall have the same meaning as “certified massage therapist.”

J. “Certified massage practitioner” or “CMP” means any person to whom a state certificate has been issued pursuant to subdivision (b) of Section 4601 of the California Business and Professions Code, or subdivision (a) or (c) of Section 4604 of the California Business and Professions Code, and who is engaged in the practice of massage therapy for compensation. As used in this chapter, the terms “masseur” or “masseuse” or “independent massage therapist or practitioner” shall have the same meaning as “certified massage practitioner.”

K. “State certificate,” also known as “MTO certificate,” means the certificate issued by the massage therapy organization, presently known as the California Massage Therapy Council (CAMTC), or a local certification at a comparable fee, to massage therapists pursuant to subdivision (c) of Section 4601 of the California Business and Professions Code, and to massage practitioners pursuant to subdivision (b) of Section 4601 of the California Business and Professions Code or subdivision (a) of Section 4604 of the California Business and Professions Code. (Ord. 827 § 1(part), 2010).

9.20.030 Zoning clearance required for establishment or service – Generally.

A. Required. It shall be a misdemeanor for any person to engage in, conduct or otherwise maintain in or upon any premises in the city the business of a massage establishment or an out-call massage service without a valid zoning clearance issued by the Cotati community development department.

B. Zoning Clearance. It shall be required for any independent massage therapist or practitioner to provide copies of or other evidence of state certification, also known as MTO certification, prior to obtaining a zoning clearance from the Cotati community development department pursuant to Business and Professions Code Section 4612(b)(2)(B). Furthermore, it shall be required for any massage establishment or business that employs or uses only persons certified pursuant to this chapter to provide massage services to provide evidence of a legal photo ID and state certification held by the persons who are providing massage services at the business prior to obtaining a zoning clearance. (Ord. 827 § 1(part), 2010).

9.20.040 Business license – Generally.

All massage establishments or out-call massage services including independent massage therapists or practitioners shall obtain a business license pursuant to the provisions of Chapter 5.04. (Ord. 827 § 1(part), 2010).

9.20.050 State certificate – Masseur, masseuse, independent massage therapist or practitioner – Required.

It shall be a misdemeanor for any person to perform or engage in the practice of massage for compensation within the city without a valid and unrevoked state certificate. The certificate required by this section shall be maintained in compliance with the provisions of California Business and Professions Code Section 4600 et seq. Anyone holding a state certificate must be able to produce legal photo ID upon demand by the city. (Ord. 827 § 1(part), 2010).

9.20.060 State certificate – Operation without unlawful.

A. It shall be a misdemeanor for any massage establishment or out-call massage service or its owner, operator or agent to hire or employ any person for the purposes of performing massage services without requiring that person to obtain a state certificate pursuant to the provisions of this chapter.

B. Any owner or operator who allows an employee, who is not in possession of a valid, unrevoked, current state certificate, to perform any massage services whatsoever shall be guilty of a misdemeanor. (Ord. 827 § 1(part), 2010).

9.20.070 Massage business or establishment – Suspension, revocation or restriction for cause.

The city manager may order any zoning clearance required by this chapter to be suspended, revoked or restricted for any violation of this chapter or the provisions of Business and Professions Code Section 4600 et seq. that occurs on the massage business premises. (Ord. 827 § 1(part), 2010).

Article II. Operating Regulations

9.20.110 Physical facility requirements.

The following physical facility requirements shall be applicable to all non-exempt 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 doors.

B. In lieu of doors to dressing rooms, toilet rooms and massage therapy rooms or cubicles, draw drapes, curtain enclosures, or accordion-pleated closures are acceptable on the interior of the facility.

C. Beds, floor mattresses and waterbeds are not permitted on the premises of the business or establishment. (Ord. 827 § 1(part), 2010).

9.20.120 Health and safety requirements.

The following health and safety requirements shall be applicable to all non-exempt 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. The massage or business 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. Clean towels, coverings and linens shall be stored in closed, clean cabinets when not in use.

B. All liquids, creams, or other preparations used on or made available to patrons shall be kept in clean and closed containers. 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.

C. 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 A of this section.

D. 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. 827 § 1(part), 2010).

9.20.130 Attire and physical hygiene requirements.

The following attire and physical hygiene requirements shall be applicable to all massage therapists and 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 shall not be exposed. No bathing suit or undergarment, including, but not limited to, a negligee or underwear, shall be visible at any time.

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. (Ord. 827 § 1(part), 2010).

9.20.140 Employment of persons under eighteen prohibited.

It shall be a misdemeanor for any owner, proprietor, manager or other person in charge of any massage establishment or out-call massage service to employ any person under eighteen years of age to provide massage therapy services. (Ord. 827 § 1(part), 2010).

9.20.150 Massage businesses or establishments – Inspection thereof.

The city has the right to conduct reasonable inspections during regular business hours, to ensure compliance with Business and Professions Code Section 4612(d) and this chapter or other applicable fire and health and safety requirements.

A. All non-exempt massage businesses or establishments, including those described in Business and Professions Code Section 4612(b)(1), shall permit representatives of any city of Cotati department and/or the Rancho Adobe Fire Protection District, to conduct reasonable inspections, during business hours, to ensure compliance with this chapter, Business and Professions Code Section 4600 et seq., or other applicable fire, health or safety requirements.

B. Nothing in this section shall prohibit the city or its representatives from pursuing any and all available legal remedies to secure entry into and inspection of the premises if such entry is refused, or for any other reason allowed by law.

C. It is a violation of this chapter for the business or the establishment to prohibit or interfere with any lawful inspection of the premises. (Ord. 827 § 1(part), 2010).

9.20.160 Display of state certificate.

Every massage establishment or business shall maintain on its premises evidence for review by local authorities that demonstrates that all persons providing massage services hold a valid state certificate. The state certificate and a passport-quality photo for each person providing massage services shall be posted in a conspicuous place for public review. (Ord. 827 § 1(part), 2010).

9.20.200 Advertising.

A. It shall be a misdemeanor for any massage business or establishment, independent massage therapist or practitioner, out-call massage service or masseur or masseuse to place, publish or distribute, or cause to be placed, published or distributed, any advertising matter that would reasonably suggest to prospective patrons that any massage service of any type or any other service or activity is offered or available for immoral purposes, or in a manner intended to arouse, appeal to or gratify a prurient interest, lust, sexual or passionate desire.

B. It shall be a misdemeanor for any massage business or establishment, independent massage therapist or practitioner, out-call massage service or masseur or masseuse to advertise through any print or electronic media that is classified for “Adults only” or other similar classification.

C. It is a violation of this chapter and unlawful for any person who does not possess a valid state certificate, and for any massage business or establishment that employs or retains such a person, to:

1. State or advertise or put out any sign or card or other device, or to represent to the public through any print or electronic media, that such person is certified, registered or licensed by a government agency as a massage therapist or massage practitioner; or

2. Hold oneself out or use the title of “certified massage therapist,” “certified massage practitioner,” or any other term, such as “licensed,” “registered,” or “CMT,” that implies or suggests that such person is the holder of a state certificate. (Ord. 827 § 1(part), 2010).

9.20.210 Transfer of zoning clearance and/or business license – Change of name or location.

A. Every non-exempt massage business or establishment, and every massage business and establishment as defined under Business and Professions Code Section 4612(b)(1), shall notify the city administrative services department and community development department of any intention to rename, change management or ownership type, or convey the business or establishment to another person.

B. No person granted a state certificate pursuant to this chapter shall operate under any name or conduct his business under any designation or for any location not specified in the zoning clearance and/or business license.

C. The state certificate holder shall renew zoning clearance with the city community development department upon any change of name or location.

D. Every state certificate holder shall notify the city administrative services department upon any change of name, location or ownership type. (Ord. 827 § 1(part), 2010).

9.20.220 Owner and operator responsibility – Denial, revocation, restriction or suspension of zoning clearance.

The following provisions shall apply to all non-exempt massage businesses or establishments, and all massage businesses or establishments described in Business and Professions Code Section 4612(b)(1):

A. For the purpose of enforcing the requirements of this chapter, all owners and operators of the business or establishment shall be responsible for the conduct of all of their employees, agents, independent contractors or other representatives, while on the premises of the business or establishment or providing massage therapy.

B. Notwithstanding any other provision of this code, the city may:

1. Require the business or establishment in its application for a business license, or for the renewal of a business license, to provide relevant information about the activities of the business or establishment regulated by this chapter;

2. Make reasonable investigations into the information so provided;

3. Charge a fee sufficient to cover the costs of any permit, license or certificate activities regulated by this chapter; and

4. Deny, revoke, restrict or suspend a zoning clearance 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 any of the provisions of Business and Professions Code Section 4600 et seq.; or (b) the business or establishment has provided materially false information in its application for a zoning clearance. (Ord. 827 § 1(part), 2010).

Article III. Miscellaneous Provisions – Exemptions

9.20.230 Exemptions.

This chapter shall not apply to the following:

A. Persons holding a valid certificate to practice the healing arts under the laws of the state of California including, but not limited to, holders of medical degrees such as physicians, surgeons or chiropractors, osteopaths, naturopaths, podiatrists, acupuncturists, physical therapists, registered nurses and licensed vocational nurses;

B. State-licensed hospitals, nursing homes, sanitariums, physiotherapy establishments, or other state-licensed physical or mental health facilities and their employees;

C. Recognized schools of massage and their students in training provided the students provide massage therapy only under the supervision of an instructor;

D. Barbers, estheticians, and cosmetologists who are licensed under the laws of the state of California while providing massage therapy within the scope of their licenses;

E. Persons who provide massage therapy to amateur, semi-professional or professional athletes or athletic teams, facilities or events, so long as such persons do not practice massage therapy as their primary occupation at that location in the city of Cotati. (Ord. 827 § 1(part), 2010).

9.20.240 Applicability of other ordinances.

Nothing contained in this chapter shall be construed to exempt any person from the provisions of any other ordinance, rule or regulation that would otherwise apply, nor to exempt a massage establishment, independent massage therapist or practitioner, or out-call massage service from the provisions of any zoning, licensing, taxing or other building regulation, ordinance or statute. (Ord. 827 § 1(part), 2010).

9.20.250 Violations.

A. It is unlawful for any person, individual, partnership, co-partnership, firm, association, joint stock company, corporation, limited liability company or combination of the above in whatever form or character to violate any provision or fail to comply with any of the requirements of this chapter.

B. A violation of this chapter shall be punished in accordance with Section(s) 17.89.040 et al. (Ord. 827 § 1(part), 2010).

9.20.260 Remedies cumulative.

All remedies prescribed under this chapter shall be cumulative and the use of one or more remedies by the city shall not bar the use of any other remedy for the purpose of enforcing the provisions hereof. (Ord. 827 § 1(part), 2010).

9.20.270 Separate offense for each day.

Any person that 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 person commits, continues, permits, or causes a violation thereof, and shall be penalized accordingly. (Ord. 827 § 1(part), 2010).

9.20.280 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 may be summarily abated by the city. (Ord. 827 § 1(part), 2010).

9.20.290 Criminal penalties.

Any person who violates, causes, or permits another person to violate any provision of this chapter commits a misdemeanor. (Ord. 827 § 1(part), 2010).

9.20.300 Civil injunction.

The superior court may, upon petition, issue an injunction or other appropriate order restraining conduct to any person acting as a massage practitioner who violates any provision of this chapter in accordance with Business and Professions Code Section 4607. (Ord. 827 § 1(part), 2010).

9.20.310 Application of regulations to existing massage establishments, out-call massage services, and independent massage therapists or practitioners.

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 the ordinance codified in this chapter. Each massage establishment and each person providing massage services shall have one hundred twenty days from the effective date of the ordinance codified in this chapter to fully comply with this chapter. (Ord. 827 § 1(part), 2010).