Chapter 5.32
MASSAGE ESTABLISHMENT REGULATIONS
Sections:
5.32.020 Findings and purpose.
5.32.040 Operator permit required.
5.32.050 Application for operator permit.
5.32.060 Operator permit issuance and denial.
5.32.070 Massage therapist certificate.
5.32.080 Prohibited massage therapist conduct.
5.32.090 Requirements for the operation of a massage establishment.
5.32.125 Out-call massage and on-site massage restrictions.
5.32.130 Transfer and renewal of permits.
5.32.140 Suspension, revocation, denial and appeal.
5.32.150 Attorneys’ fees and costs.
5.32.160 Violation and penalty.
5.32.010 Title.
This chapter shall be known as the Escalon massage establishment regulations. (Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007)
5.32.020 Findings and purpose.
The city council finds and declares as follows:
A. The requirements and restrictions imposed by this chapter are reasonably necessary to protect the health, safety and welfare of the citizens of the City of Escalon;
B. The City of Escalon is authorized, by virtue of the California Constitution and Government Code Section 51030 et seq., to regulate massage establishments by imposing reasonable conditions set by ordinance, with recognition of the limitations imposed by Government Code Section 51034 and Chapter 10.5 of Division 2 of the Business and Professions Code (commencing with Section 4600);
C. There is opportunity for acts of prostitution and other unlawful sexual activity to occur in massage establishments. Courts have long recognized that massage is a pervasively regulated activity and that massage establishments are often brothels in disguise. The establishment of reasonable standards for issuance of permits and restrictions on operations would serve to reduce the risk of illegal activity without significantly burdening legitimate businesses;
D. The restrictions and requirements contained in this chapter reduce the burdens on the police department and permit the deployment of police personnel such that more serious crimes may be prevented and important laws enforced; and
E. The regulations and restrictions contained in this chapter tend to discourage massage establishments from degenerating into houses of prostitution and the means utilized in this chapter bear a reasonable and rational relationship to the goals sought to be achieved. (Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007)
5.32.030 Definitions.
Unless 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. “Bath” shall mean the giving or furnishing of Russian, Finnish, Swedish, hot air, vapor, electric, cabinet, mineral, sweat, salt, Japanese, sauna, or fomentation bath, or bath of any kind whatever, excluding ordinary bath tubs or showers where an attendant is not required. “Bath” shall also include any form of body shampoo.
B. “California Massage Therapy Council” (“CMTC”) shall mean the state-organized nonprofit organization created to regulate the massage industry as set forth in Chapter 10.5 of Division 2 of the Business and Professions Code of the state (commencing with Section 4600).
C. “Certificate” or “certification” shall mean a valid certificate issued by either the California Massage Therapy Council (CMTC) or the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB) for the practice of massage therapy.
D. “Certified massage therapist” shall mean any person to whom the CMTC or NCBTMB has issued a certification, and who provides massage for compensation.
E. “City manager” shall mean the city manager of the City of Escalon or his or her designated representative.
F. “City council” shall mean the city council of the City of Escalon.
G. “Conviction” or “convicted” shall mean a plea or verdict of guilty or a conviction following a plea of nolo contendere.
H. “Employ” shall include contracting with independent contractors.
I. “Employee” shall include independent contractors.
J. “Health department” shall mean the San Joaquin County health care services.
K. “Manager” shall mean the person(s) designated by the operator of the massage establishment to act as the representative and agent of the operator in managing day-to-day operations with the same liabilities and responsibilities. Evidence of management includes, but is not limited to, evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules or purchase supplies. A manager may also be an operator. A manager is not required to be a certified massage therapist. A manager may not perform any massage services without first meeting the standards and qualifications of EMC 5.32.070.
L. “Massage” shall mean any method of treating the external parts of the body for remedial, hygienic, relaxation or any other reason or purpose, whether by means of pressure on, friction against or stroking, kneading, tapping, pounding, vibrating, rubbing or other manner of touching external parts of the body with the hands or with the aid of any mechanical or electrical apparatus or appliance with or without supplementary aids such as rubbing alcohol, liniment, antiseptic, oil, powders, creams, ointment or other similar preparations commonly used in this practice.
M. “Massage establishment” shall mean any establishment having a fixed place of business within the City of Escalon where any person, firm, association, partnership, corporation or combination thereof engages in, conducts, carries on or permits to be conducted or carried on, for money or any other consideration, administration to another person of a massage or health treatment involving massage.
N. “National Certification Board for Therapeutic Massage and Bodywork” (“NCBTMB”) shall mean the independent, private, nonprofit organization that provides certification for the massage therapy and bodywork profession.
O. “On-site massage” shall mean a massage given to an individual who remains fully clothed in accordance with this chapter and state law, at a location other than a permitted massage establishment, and is limited to massages that take place at malls, business offices, sports complexes, convention centers and public events.
P. “Operator” shall mean all persons who have an ownership interest in the massage establishment and are responsible for its day-to-day operations.
Q. “Out-call massage” shall mean the engaging in or carrying on of massage for compensation at a location other than a permitted massage establishment.
R. “Person” shall mean any individual, corporation, partnership, association or other group or combination thereof acting as an entity.
S. “Police chief” shall mean the police chief of the City of Escalon or his or her designated representative.
T. “Police department” shall mean the police department of the City of Escalon.
U. “Qualified massage educational program” shall mean an educational program or school approved by the CMTC or NCBTMB that meets minimum standards for training and curriculum in massage and related subjects. (Ord. 576 § 2 (Exh. A), 2019; Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007)
5.32.040 Operator permit required.
No person shall operate a massage establishment within the city without first obtaining an operator permit pursuant to EMC 5.32.050 and 5.32.060 and securing the necessary business license as required by, and complying with, this chapter. (Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007)
5.32.050 Application for operator permit.
A. Any person seeking an operator permit for a massage establishment shall file a written application on the required form with the police chief. The application shall be completed and signed by the operator, or authorized representative thereof, of the proposed massage establishment. The permit application does not authorize the operation of a massage establishment unless and until such permit has been properly granted. The application shall contain or be accompanied by the following information:
1. The type of ownership of the business. 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 residential addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of that corporation. If the applicant is a partnership, the application shall set forth the name and residence of each of the partners, including limited partners. If it is a limited partnership, it shall furnish a copy of its certificate of limited partnership filed with the Secretary of State. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporations shall apply. A corporate or partnership applicant shall designate one of its officers or general partners to act as its responsible managing officer. Such designated persons shall complete and sign all application forms required for an individual applicant under this chapter, but only one application fee shall be charged;
2. The precise name under which the massage establishment is to be conducted;
3. The complete address and all telephone numbers of the massage establishment;
4. A complete and current list of the names and residential addresses of all proposed massage therapists and employees in the massage establishment and the name and residential addresses of the manager(s) proposed to be principally in charge of the operation of the massage establishment;
5. The proposed hours of operation of the massage establishment, provided such establishment is not open between the hours of 8:00 p.m. and 8:00 a.m.;
6. A description of any other business operated on the same premises or within the City of Escalon or the State of California, which is owned or operated by the applicant;
7. The following personal information concerning the applicant:
a. Full complete name and all aliases used by the applicant;
b. Current address and telephone number and all previous residential addresses for the eight years preceding the date of the application;
c. Acceptable proof that the applicant is at least 18 years of age;
d. Height, weight, color of hair and eyes and gender;
e. Two current front-faced portrait photographs at least two inches by two inches in size;
f. The applicant’s complete business, occupation and employment history for the eight years preceding the date of the application, including, but not limited to, massage or similar business history and experience of the applicant;
g. The complete massage permit history of the applicant: whether such person has ever had any permit or license issued by any agency, including the California Massage Therapy Council, board, city, county, territory or state; the date of issuance of such a permit or license; and whether the permit or license was denied, revoked or suspended, and the reasons therefor;
h. All criminal convictions, including pleas of nolo contendere, within the last eight years, including those dismissed or expunged pursuant to Penal Code Section 1203.4, but excluding minor traffic violations, and the date and place of each such conviction and explanation thereof;
i. A complete set of fingerprints taken by the police department, unless the applicant provides proof of a current, valid CMTC or NCBTMB certificate;
j. A copy of the applicant’s valid driver’s license or other form of government-issued identification;
8. The name and address of the owner and lessor of the real property upon 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 or her property;
9. Authorization for the city, its agents and employees to seek verification of the information contained in the application;
10. Such other identification and information as the police chief may reasonably require in order to discover the truth of the matters herein specified and as required to be set forth in the application;
11. A statement in writing and dated by the applicant that he or she certifies under penalty of perjury that all information contained in the application is true and correct;
12. Statements in writing and dated by the applicant and the applicant’s designated manager(s) certifying under penalty of perjury that they:
a. Have received a copy of this chapter;
b. Understand its contents; and
c. Understand the duties of an operator or manager, respectively, as provided in this chapter;
B. If, during the term of a permit, the permit holder has any change in information submitted on the original or renewal application, the permit holder shall notify the police department of such change in writing within 10 business days thereafter. (Ord. 576 § 2 (Exh. A), 2019; Ord. 561 § 3 (Exh. A), 2017; Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007)
5.32.060 Operator permit issuance and denial.
A. Upon receipt of a complete permit application, the police chief shall conduct an investigation to ascertain whether such permit should be issued as requested. The police chief shall, within 60 days of receipt of an application, approve, conditionally approve or deny the application. The 60-day period may be extended for up to 30 additional days, if necessary, to complete the investigation. The police chief shall issue such permit as requested, unless he or she makes any of the following findings:
1. The applicant, or any officers, directors or partners, or any person directly engaged or employed in the massage establishment, has within the eight years preceding the date of the application:
a. Been convicted of a violation of Penal Code Section 266i, 315, 316, 318, or 647(b), or any other provision of law pursuant to which a person is required to register under the provisions of Penal Code Section 290 or any lesser included or lesser related offense in satisfaction of, or as a substitute of, any of the previously listed crimes;
b. Been convicted of any felony offense involving the sale of a controlled substance as specified in Health and Safety Code Section 11054, 11055, 11056, 11057 or 11058;
c. Been convicted of any offense in any other state which is the equivalent of any of the above-mentioned offenses;
d. Been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Penal Code Section 11225 et seq. or any similar provisions of law in a jurisdiction outside the State of California;
e. Been convicted of an act involving dishonesty, fraud, deceit or moral turpitude or an act of violence, which act or acts are related to the qualifications, functions or duties of an operator;
f. Has had an operator or massage therapist permit or other similar license or permit denied, suspended or revoked for cause by a licensing authority, including the California Massage Therapy Council, or by any city, county or state;
2. The applicant has made a false, misleading or fraudulent statement or omission of fact to the city in the permit application process;
3. The application does not contain all of the information required by EMC 5.32.050;
4. The massage establishment, as proposed by the applicant, does not comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards;
5. The applicant has not satisfied the requirements of this chapter in the time specified;
6. The applicant, or any officers, directors, or partners, has entered into a settlement agreement with any licensing authority, including the California Massage Therapy Council or the National Certification Board for Therapeutic Massage and Bodywork, or any municipality, county, or state, requiring the applicant, or any officers, directors, or partners, to cease operations of a massage establishment in any jurisdiction based on allegations of illegal activity;
B. Permitted operators and managers shall comply with the following conditions to the operator permit and any other reasonable conditions imposed by the police chief:
1. Prohibited Massage Areas. Except to the extent required, in writing, by a state-licensed medical practitioner, no massage therapist shall massage the genitals or anal area of any patron, the breast(s) of any female patron unless there is prior written consent of the patron and a referral from a licensed California health care provider, and no operator or manager of a massage establishment shall allow or permit such massage. No operator or manager, while performing any task or service associated with the massage establishment, shall be present in any room with another person unless the person’s genitals, buttocks and breasts are fully covered.
2. Names. No operator granted a permit pursuant to this section shall use any name or conduct business under any designation not specified in his or her permit.
3. Manager on Premises. The massage establishment shall have a manager on the premises at all times during hours of operation. The operator(s) shall file a statement with the police chief designating the person with power to act as a manager. The operator shall also file with the police chief a statement, signed and dated by each manager designated after permit issuance, certifying under penalty of perjury that they:
a. Have received a copy of this chapter;
b. Understand its contents; and
c. Understand the duties of a manager as provided in this chapter.
4. Licensed Massage Therapist on Premises. During the hours of operation, the massage establishment shall have at least one massage therapist holding a current valid certificate issued by the CMTC or NCMTMB on the premises and on duty at all times.
5. Operator/Manager Responsibility. The operator and on-duty manager shall be responsible for the conduct of all employees while the employees are on the licensed premises. An act or omission of any employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator for purposes of determining whether the operator permit shall be revoked, suspended, denied or renewed.
6. Licensed Massage Therapists. The operator or manager shall not employ any person as a massage therapist who does not have a valid CMTC or NCBTMB certificate. The operator shall report to the police chief any change of employees, whether by new or renewed employment, discharge or termination, on the form and in the manner required by the police chief. The report shall contain the name of the employee and the date of hire or termination. The report shall be made within five days of the date of hire or termination. The operator shall deliver the permit and photo identification card of any massage therapist no longer employed by the operator to the police chief within five days of employment termination.
7. Insurance. No person shall engage in, conduct or carry on the business of a massage establishment unless there is on file with the police chief, in full force and effect at all times, documents issued by an insurance company authorized to do business in the State of California evidencing that the operator is insured under a liability insurance policy providing minimum coverage of $500,000 for injury or death arising out of the operation of the massage establishment and/or the administration of a massage. Each operator shall provide the police chief with evidence of insurance within 45 days of the date of issuance of the permit.
8. Compliance with Code. The operator shall comply with all provisions of this chapter and any applicable provisions of the Escalon Municipal Code.
9. Inspections and Searches. By applying for a permit, the operator consents to the inspection of the massage establishment by the city’s building department, police department, and the fire department and health department for the purpose of determining that the provisions of this chapter or other applicable laws or regulations are met. The operator consents to the inspection of the occupied massage rooms by the police department for the purpose of determining that the provisions of this chapter are met upon occurrence of any of the conditions described in EMC 5.32.090(B)(16) which would require the posting of the notice to all patrons.
10. W-2 massage therapist employees are not required to obtain a business license. Independent contractor massage therapists shall obtain a business license. (Ord. 576 § 2 (Exh. A), 2019; Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007)
5.32.070 Massage therapist certificate.
No person shall perform or administer a massage for compensation or advertise to provide massage services in the City of Escalon unless such person has in effect a valid certificate issued by the CMTC or NCBTMB and such person complies with state law and the requirements of this chapter and pay the associated fees. All massage therapists shall file a copy of their current, valid massage certification issued by the California Massage Therapy Council or National Certification Board for Therapeutic Massage and Bodywork with the chief of police. (Ord. 576 § 2 (Exh. A), 2019; Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007)
5.32.080 Prohibited massage therapist conduct.
In accordance with applicable state law, no massage therapist may commit any of the following acts:
A. Unprofessional conduct, including, but not limited to, any of the following:
1. Engaging in sexually suggestive advertising related to massage services.
2. Engaging in any form of sexual activity on the premises of a massage establishment where massage is provided for compensation, or engaging in sexual activity of any kind while providing massage services for compensation.
3. Providing massage services on a suspended, restricted, or revoked CMTC and/or NCBTMB certificate.
4. Providing massage of the genitals or anal region.
5. Providing massage of female breasts without the written consent of the person receiving the massage and a referral from a licensed California health care provider.
B. Impersonating a certificate holder, or permitting or allowing a noncertified person to use a certificate.
C. Violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any state law requirements governing licensure by the CMTC and/or NCBTMB or any provision of this chapter.
D. Committing any fraudulent, dishonest, or corrupt act that is substantially related to the qualifications or duties of a certificate holder.
E. Dressing while engaged in the practice of massage for compensation, or while visible to clients in a massage establishment, in attire that is transparent, see-through, or substantially exposes the certificate holder’s breasts, buttocks, genitals, or undergarments.
F. Committing any act punishable as a sexually related crime or being required to register pursuant to the Sex Offender Registration Act (Chapter 5.5, commencing with Section 290, of Title 9 of Part 1 of the Penal Code), or being required to register as a sex offender in another state. (Ord. 576 § 2 (Exh. A), 2019; Ord. 543 § 3 (Exh. A), 2015)
5.32.090 Requirements for the operation of a massage establishment.
All massage establishments and operators thereof shall comply with the following as specified:
A. Facilities.
1. Structure. Consistent with EMC 5.32.170, massage establishments shall be located in a zoning district which permits such use. When a new massage establishment is constructed, three sets of plans shall be submitted to the city and the health department for approval and shall be accompanied by the appropriate nonrefundable plan check fee.
2. Signs – Hours of Operation. Each operator shall post and maintain, in compliance with existing state and city laws, a readable sign identifying the premises as a massage establishment. The sign and the front of the business shall not be illuminated by strobe or flashing lights. In addition, the hours of operation shall be posted in the front window and clearly visible from the outside. If a massage establishment is located within another business, signs shall be posted on the massage door.
3. Display of Permits or CMTC and/or NCBTMB Certificate. Each operator and/or on-duty manager shall display the operator permit or CMTC/NCBTMB certificate in a conspicuous public place in the lobby of the massage establishment. Each operator and/or on-duty manager shall ensure the CMTC/NCBTMB certificate for each massage therapist employed at the establishment (whether on duty or not) is conspicuously displayed in a public place in the lobby. The operator and/or on-duty manager must also post, on a daily basis in a conspicuous public place in the lobby, the name of the operator and on-duty manager, as well as all on-duty massage therapists.
4. Services List. Permitted operators shall post and maintain a list of services available and the cost of such services in a conspicuous public place within the premises. No massage establishment may offer baths as a service. Where services are so posted, no operator or on-duty manager shall permit, and no massage therapist shall offer or perform, any service other than those posted.
5. Lighting. Each operator shall provide in each room where massage is given sufficient lighting and ventilation that complies with the California Building Standards Code as amended by this code. The lighting in each massage room shall be activated at all times while the patron is in such room or enclosure.
6. Restroom Facilities. A minimum of one toilet and one separate wash basin shall be provided for patrons in each massage establishment, which basin shall provide soap or detergent and hot running water at all times and shall be located within close proximity to the area devoted to massage services. A permanently installed soap dispenser, filled with soap, and a single service towel dispenser shall be provided at the restroom hand wash sink. No bar soap may be used. A trash receptacle shall be provided in each toilet room. Showers may be provided at the operator’s option.
7. Separate Rooms. If male and female patrons are to be treated simultaneously, permitted operators shall provide separate massage rooms for male and female patrons.
8. Maintenance. All facilities for the massage establishment must be in good repair and shall be thoroughly cleaned and sanitized each day the business is in operation. All walls, floors and ceilings of each restroom and shower area shall be made smooth and easily cleanable. No carpeting shall be installed in any of these areas.
9. Massage Table. A massage table shall be provided in each massage room and the massage shall be performed on this massage table. The tables should have a minimum height of 18 inches. Two-inch-thick foam pads with maximum width of four feet may be used on a massage table and shall be covered with durable, washable plastic or other waterproof material. Beds, floor mattresses and waterbeds are not permitted on the premises.
10. Handicapped Areas. Massage establishments shall comply with all state and federal laws and regulations for handicapped customers.
11. Doors. All front, reception, hallway or front exterior doors (except back or exterior doors used solely for employee entrance to and exit from the massage establishment) shall be unlocked during business hours, except as may be permitted by applicable law (such as the Uniform Fire Code) which allow for safety doors which may be opened from the inside when locked. No massage may be given within any cubicle, room, enclosure or any area within a massage establishment which is fitted with a lock of any kind (such as a locking door knob, padlock, dead bolt, sliding bar or similar device), unless the only door is an exterior door. Massage operators shall not be required to maintain unlocked doors when there is no staff available to ensure security for clients and massage staff who are behind closed doors. If the massage establishment is a business entity owned by one individual with one or no employees or independent contractors, the massage establishment shall not be required to maintain unlocked doors.
B. Operations.
1. Equipment. Each operator and/or on-duty manager shall provide and maintain on the premises adequate equipment for disinfecting and sterilizing instruments used in massage.
2. Inspections. The operator and/or on-duty manager consents to the inspection of the massage establishment by the city’s building department, police department and the fire department and health department for the purpose of determining that the provisions of this chapter or other applicable laws or regulations are met.
a. The city’s building department, police department and the fire department and health department may, from time to time, make an inspection of each massage establishment for the purpose of determining that the provisions of this chapter, state law or other applicable laws or regulations are met. Routine inspections shall not occur more than twice a year, unless violations are found or complaints are received. Criminal investigations may be conducted as directed by the police chief. The police department may inspect the occupied massage rooms for the purpose of determining that the provisions of this chapter are met upon occurrence of any of the conditions described in subsection (B)(16) of this section which would require the posting of the notice to all patrons. During an inspection, the police department may verify the identity of all on-duty employees.
b. Inspections of the massage establishment shall be conducted during business hours.
c. An operator or his or her agent, servant or employee commits an offense if he or she refuses to permit a lawful inspection of the premises by a representative of the police department at any time it is occupied or open for business.
3. Clothing. All persons employed in the massage establishment shall be fully clothed at all times while present at the massage establishment. Clothing shall be of a fully opaque, nontransparent material and shall provide complete covering of the genitals, pubic area, buttocks, anal area and chest. All message therapists and operators shall wear city-issued identification cards which will be issued at the time of approval.
4. Roster of Employees. The operator and/or on-duty manager shall maintain a register of all employees showing the name, nicknames and aliases used by the employee, residential address, age, birth date, gender, height, weight, color of hair and eyes, phone numbers, date of employment and termination, if any, and duties of each employee. The above information on each employee shall be maintained in the register on the premises for a period of two years following termination. Operators shall maintain a register of all therapists for review by local authorities that demonstrates all therapists providing massage services are CMTC- or NCBTMB-certified. The operator and/or on-duty manager shall make the register of employees available immediately for inspection upon demand of a representative of the police department at all reasonable times.
5. Linen. Common use of towels or linen shall not be permitted. Towels and linen shall be laundered or changed promptly after each use. Separate cabinets or containers shall be provided for the storage of clean and soiled towels or linen.
6. Living Prohibited. No person or persons shall be allowed to live inside a permitted massage establishment at any time. All living quarters shall be separate from a permitted massage establishment. No food of any kind shall be prepared for sale or sold in any establishment unless an appropriate food vending permit is granted by the County of San Joaquin.
7. Alcoholic Beverages/Drugs. No person shall enter, be in or remain in any part of a massage establishment licensed under this chapter while consuming any alcoholic beverage or controlled substance. The operator and on-duty manager shall be responsible to ensure that no such person shall enter or remain upon the massage establishment. Operators shall not serve alcoholic beverages as required by and consistent with all applicable state laws and regulations.
8. Recordings. No electrical, mechanical or artificial device shall be used by a permitted operator or any employee of a permitted massage establishment for audio and/or video recording or for monitoring the performance of a massage or the conversation or other sounds in the massage rooms without the knowledge or consent of the patron and the written permission of the police department.
9. Coverings. Each massage establishment shall provide to all patrons clean, sanitary and opaque coverings capable of covering the patrons’ specified anatomical areas, including the genital area, anus and female breast(s). No common use of such coverings shall be permitted, and reuse is prohibited unless adequately cleaned.
10. Records of Treatment. The operator shall keep a record of the dates and hours of each treatment or service, the name and address of the patron, the name of the therapist administering such service and a description of the treatment or service rendered. A short medical history form shall be completed by the patron to determine if the patron has any communicable diseases, areas of pain, high blood pressure or any physical condition which may be adversely affected by massage. These records shall be prepared prior to administering any massage or treatment and shall be retained for a period of 24 months after such treatment or service. These records shall be open to inspection upon demand only by officials charged with enforcement of this chapter and for no other purpose. The police department shall periodically inspect the records to ensure compliance with this section. The information furnished or secured as a result of any such records should be used only to ensure and enforce compliance with this chapter or any other applicable state or federal laws and shall remain confidential. Any unauthorized disclosure or use of such information by any officer or employee of the city shall constitute a misdemeanor. This provision shall only apply to permitted operators, except that all operators shall ensure every patron completes the medical history form required herein.
11. Advertising. No permitted massage establishment shall place, publish or distribute, or cause to be placed, published or distributed, any advertising matter that depicts any portion of the human body or employs text that would reasonably suggest to prospective patrons that any service is available other than those services authorized by this chapter.
12. Access. Permitted massage establishments shall not allow any person(s), other than valid CMTC or NCBTMB certificate holders, permitted operators under this chapter, and customers, anywhere in the massage establishment other than the lobby/reception area during hours of operation. All massage establishments shall not obstruct entry doors to any room by any means.
13. Sexual Paraphernalia. Instruments, devices or paraphernalia that are designed for use in connection with sexual activities, including, but not limited to, condoms, shall not be permitted within a massage establishment.
14. Compliance. Massage establishments shall comply with all applicable provisions of the Escalon Municipal Code.
15. Discrimination. No massage establishment may discriminate or exclude patrons on the basis of their race, sex, religion, age, handicap or any other classification protected under federal or state laws, rules or regulations.
16. Notices. The police chief may require that the following notice be posted in the event that any employee of the massage establishment or any person who has been aided and abetted by an employee of the massage establishment has been found, after full hearing by administrative proceeding or state court, to have violated any of the offenses listed in EMC 5.32.060:
NOTICE TO ALL PATRONS
THIS MASSAGE ESTABLISHMENT AND THE MASSAGE ROOMS DO NOT PROVIDE COMPLETE PRIVACY AND ARE SUBJECT TO INSPECTION BY THE ESCALON POLICE DEPARTMENT WITHOUT PRIOR NOTICE.
a. The notice set forth above shall be prepared and issued by the police chief.
b. The notice shall be conspicuously posted in a location within the massage establishment that is easily visible to any person entering the premises and in each massage room. The notice shall be so posted for 12 months following the violation of any of the offenses set forth above.
c. The requirement for posting the notice described in this subsection is cumulative and in addition to all other remedies, violations and penalties set forth in this chapter or in the ordinances, laws, rules or regulations of the city, County of San Joaquin and the State of California.
17. No person shall engage in, conduct or carry on the business of a massage establishment unless there is on file with the police chief, in full force and effect at all times, documents issued by an insurance company authorized to do business in the State of California evidencing that the operator is insured under a liability insurance policy providing minimum coverage of $500,000 for injury or death arising out of the operation of the massage establishment and/or the administration of a massage. Each operator shall provide the police chief with evidence of insurance within 45 days of the date of issuance of the operator permit.
18. Prohibited Massage Areas. Except to the extent required, in writing, by a state-licensed medical practitioner, no massage therapist shall massage the genitals or anal area of any patron or the breast(s) of any female patron.
19. Preemption. In the event the terms and conditions of any current, valid CMTC and/or NCBTMB certification conflict with or supersede the requirements of this section, any massage therapist or establishment shall not be subject to the requirements of this section to the extent of any such conflict or inconsistency. (Ord. 576 § 2 (Exh. A), 2019; Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007. Formerly 5.32.100)
5.32.100 Changes of business.
A. Every massage establishment operator granted a permit pursuant to this chapter shall report immediately to the police department any and all changes of ownership or management of the massage establishment or business, including, but not limited to, changes of manager or other person principally in charge, stockholders holding more than five percent of the stock of the corporation, officers, directors and partners, any and all changes of name, style or designation under which the business is to be conducted and all changes of address or telephone numbers of the massage business. A change of location of any of the premises may be approved by the police chief, provided there is compliance with all applicable regulations of the City of Escalon.
B. No massage therapist certificate or operator permit may be sold, transferred or assigned by an operator, 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 or certificate and shall thereafter be null and void for use in the City of Escalon; provided and excepting, however, that if the operator is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without effecting a surrender or termination of such operator permit, and in such case, the permit, upon notification to the police chief, shall be placed in the name of the surviving partners. No massage therapist certificate may be sold, transferred or assigned by a certificate holder or any operation of law to any other person or persons. (Ord. 576 § 2 (Exh. A), 2019; Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007. Formerly 5.32.110)
5.32.110 Fees.
The city council shall establish by resolution, and from time to time may amend, the fees for the administration of this chapter. The city may include in this resolution a health services fee schedule prescribing annual fees to be paid by the operator of each massage establishment; such fees are to be paid directly to the health department and retained by the county as reimbursement for the services related to this chapter. Fees required by this chapter shall be in addition to any required by this code. (Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007. Formerly 5.32.120)
5.32.120 Exemptions.
A. The requirements of this chapter shall have no application and no effect upon and shall not be construed as applying to any persons designated as follows:
1. State-licensed physicians, surgeons, chiropractors, physical therapists, acupuncturists, podiatrists, osteopaths or any registered or licensed vocational nurse working on the premises of, and under the direct supervision of, a state-licensed physician, surgeon, chiropractor or osteopath. Practical nurses or other persons without qualifications as massage therapists, whether employed by physicians, surgeons, chiropractors or osteopaths or not, may not give massage or massage procedures.
2. Persons performing a therapeutic modality for which the state does not offer licenses or certification under the provisions of Division 2 (commencing with Section 500) of the Business and Professions Code and the modality is performed with minimal touching and the client remains fully clothed at all times, such as Reiki, reflexology, Rolfing or the Bowen technique.
3. Barbers, cosmetologists, or estheticians who are duly licensed under the laws of the State of California, while engaging in practices within the scope of their licenses, so long as the barber, cosmetologist or esthetician limits any massages he/she performs in the course of his/her professional duties to the neck, face and/or scalp, hands or feet of the clients when that massage is accessory to and within the scope of the barber’s, cosmetologist’s, and esthetician’s state license.
B. Commencing on the effective date of this chapter, all permits shall be issued in accordance with the provisions of this chapter. Any permits validly in existence as of the date of the ordinance codified in this chapter, including previously issued local permits for massage operators, massage therapists and massage practitioners, shall continue in effect until their normal expiration or one year, whichever is sooner, whereupon all provisions of this chapter must be complied with. (Ord. 576 § 2 (Exh. A), 2019; Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007. Formerly 5.32.130)
5.32.125 Out-call massage and on-site massage restrictions.
A. No person or massage establishment shall perform either on-site massage or out-call massage for compensation without possessing an approved certificate in conjunction with a valid city business license.
B. Out-call massage or on-site massage shall not be conducted in the following locations:
1. A hotel/motel room or any other similar location used primarily for transitory habitation purposes.
2. A private residence, unless the residence is otherwise permitted as a massage establishment. (Ord. 576 § 1, 2019)
5.32.130 Transfer and renewal of permits.
A. No permit issued hereunder shall be transferable to any other person or establishment; provided, however, an additional location or change of location of a massage operator permit will be allowed upon prior written notice to the police chief and payment of the appropriate transfer fee.
B. Permits for operators shall be renewed on a year-to-year basis; provided, that the permittee continues to meet the requirements set out in this chapter.
C. Applications for permit renewal shall be filed with the police chief before the expiration of the existing permit. Temporary permits will not be issued and renewal applications must be filed no later than 60 days prior to the expiration of the permit to prevent a lapse of the permit.
D. Renewal applications shall include such information as may be required by the police chief to update the information contained in the original permit application. The applicant shall include with the application for renewal the appropriate nonrefundable filing fee. (Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007. Formerly 5.32.140)
5.32.140 Suspension, revocation, denial and appeal.
A. Violation and Noncompliance. The police chief may refuse to renew a permit or may revoke or suspend an existing permit on the grounds that the permit holder has failed to comply with the permit conditions or other requirements of this chapter. If a suspended permit lapses during the suspension period, a new application must be filed at the end of the suspension period. In any such case, the permit holder shall have the right to appeal in the time and manner set forth in this section.
B. Revocation and Suspension of Operator Permit. The police chief may suspend, revoke or refuse to renew a permit if he or she makes any of the findings for denial of a permit under EMC 5.32.060 or for any other violation of this chapter.
C. Notice. When the police chief concludes that grounds for denial, suspension, revocation or refusal to renew a permit exist, he or she shall serve the applicant or permit holder, either personally or by certified mail addressed to the business or residential address of applicant or permit holder, with a notice of denial or notice of intent to suspend, revoke or refuse to renew permit. This notice shall state the reasons for the proposed action, the effective date of the decision, the right of the applicant or permit holder to appeal the decision to the city council, and that the decision will be final if no appeal is filed within the time permitted.
D. Appeal.
1. The right to appeal shall terminate upon the expiration of 15 days from the date of mailing of the notice. The notice of appeal shall be filed with the police department, along with the payment of any hearing fee which may be established by city council resolution. Any hearing fee shall not exceed the reasonable cost to the city of a hearing.
2. In the event an appeal is timely filed, the suspension or revocation shall not be effective until a final decision has been rendered. If no appeal is filed, the suspension or revocation shall become effective upon expiration of the period for filing appeals.
3. The city manager shall appoint a neutral hearing officer in consultation with the appellant to conduct the hearing, receive relevant evidence and render a decision. The decision of the hearing officer shall be final. The appellant shall be entitled to notice of the basis for the proposed action, a copy of the documents upon which the decision was based and the opportunity to present contrary evidence at the hearing.
4. Notice of the date, time and place of the hearing shall be mailed at least 10 days prior to the date of the hearing, by U.S. Mail, with proof of service attached, to the address listed on the application, or the address given in the notice of appeal, if different.
5. The following rules and evidence shall apply:
a. Oral evidence shall be taken only under oath or affirmation. The hearing officer shall have authority to administer oaths and to receive and rule on admissibility of evidence;
b. Each party shall have the right to call and examine witnesses, introduce exhibits and cross-examine opposing witnesses who have testified under direct examination. The hearing officer may call and examine any witness;
c. Technical rules relating to evidence and witnesses shall not apply to hearings provided for in this chapter. Any relevant evidence may be admitted if it is material and is evidence customarily relied upon by responsible persons in the conduct of their affairs regardless of the existence of any common law or statutory rule which might make admission of such evidence improper over objection in civil actions. Hearsay testimony may be admissible and used for the purpose of supplementing or explaining any evidence given in direct examination, but shall not be sufficient in itself to support a finding unless the testimony would be admissible over objection in civil actions. The rules of privilege shall be applicable to the extent they are now or are hereafter permitted in civil actions. Irrelevant, collateral, and undue and repetitious testimony shall be excluded.
E. No permit granted herein shall confer any vested right to any person or business for more than the permit period. All operators, managers and massage technicians subject to this chapter shall comply with the provisions of this chapter as they may be amended hereafter. (Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007. Formerly 5.32.150)
5.32.150 Attorneys’ fees and costs.
A. In any action, administrative proceeding or special proceeding commenced by the city to abate a public nuisance or to enjoin violation of any provision of this chapter, if the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys’ fees, the prevailing party shall be entitled to recover all costs incurred therein, including reasonable attorneys’ fees and costs of suit. In no action, administrative proceeding or special proceeding shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the city in the action or proceeding.
B. The city shall be considered a prevailing party entitled to attorneys’ fees under subsection A of this section when it can demonstrate that:
1. Its lawsuit was the catalyst motivating the defendant to provide the primary relief sought;
2. The lawsuit was meritorious and achieved its result by “threat of victory”; and
3. The city reasonably attempted to settle the litigation before filing the lawsuit. (Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007. Formerly 5.32.160)
5.32.160 Violation and penalty.
A. In addition to any other remedy available at law, violations of this chapter may be enforced pursuant to the provisions of Chapter 1.08 EMC. Each violation of any provision of this chapter shall constitute a separate and distinct violation for each and every day during which any violation of any provision of this chapter is committed, continued or permitted by such person.
B. Any massage establishment operated, conducted or maintained contrary to the provisions of this chapter shall be, and the same is declared to be, unlawful and a public nuisance, and the city may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof, in the manner provided by law, and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such massage establishments and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary to the provisions of this chapter. (Ord. 576 § 2 (Exh. A), 2019; Ord. 543 § 3 (Exh. A), 2015; Ord. 507 § 1, 2007. Formerly 5.32.170)
5.32.170 Zoning.
Massage establishments may operate in the same zones, with the same zoning restrictions and requirements, including obtaining a conditional use permit if applicable, as provided for in EMC Title 17 for the following personal or professional businesses:
A. Appliance repair, small;
B. Business offices;
C. Cemeteries, columbarium, mausoleum;
D. Funeral and mortuary services;
E. Laboratory facilities (research);
F. Massage establishments;
G. Medical offices;
H. Motor vehicle repair and service (garage);
I. Personal services (barbering/cosmetology);
J. Professional offices;
K. Veterinary services; and
L. Vocational or trade schools (nursing). (Ord. 576 § 2 (Exh. A), 2019; Ord. 543 § 3 (Exh. A), 2015)