II. BUSINESSES REGULATED
Chapter 5.44
MASSAGE ESTABLISHMENTS*
Sections:
5.44.010 Purpose.
5.44.020 Definitions.
5.44.030 CAMTC certification required.
5.44.040 Business license.
5.44.050 Notifications.
5.44.060 Exemptions.
5.44.070 Operating and sanitation requirements.
5.44.080 Inspection by government officials.
5.44.090 Owner and operator responsibility—Denial, revocation, restriction or suspension of business registration.
5.44.100 Remedies cumulative—Each day a separate offense.
5.44.110 Public nuisance.
5.44.120 Criminal penalties.
5.44.130 Civil injunction.
5.44.140 Inspections.
* Prior ordinance history: Ords. 74 and 229.
5.44.010 Purpose.
It is the purpose and intent of the city council that the operation of massage, bathing and other similar establishments and persons offering services therein, wherein the principal function is giving of massages and/or baths, as defined in this chapter, should be regulated in the interests of public health, safety and welfare by providing minimum building sanitation and health standards for such establishments, and by ensuring that persons offering services therein possess certification by the California Massage Therapy Council. (Ord. 577 § 1 (part), 2013: Ord. 530 § 1 (part), 2006)
5.44.020 Definitions.
For the purpose of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:
“California Massage Therapy Council” or “CAMTC” means that organization created pursuant to California Business and Professions Code Section 4600 et seq.
“CAMTC certificate” means a certificate issued by the CAMTC to massage therapists pursuant to California Business and Professions Code Section 4600 et seq. “CAMTC certificate” shall not include a conditional CAMTC certificate issued by the massage therapy organization to any massage therapist.
“Employee” means any person employed by a massage business who may render any service to the business, and who receives any form of compensation from the business.
“Health officer” means the health officer of the county of San Mateo or his or her authorized representative.
“Massage” means the method of treating the superficial parts of the human body for remedial or hygienic purposes by rubbing, pressing, stroking, kneading, tapping, pounding, vibrating or stimulating with the hands or any instrument.
“Massage, bathing or other similar establishments” (hereinafter sometimes referred to as “establishment” or “establishments”) means any establishment whether at a fixed place of business or at a location designated by the customer or client through outcall massage services. Any business that offers any combination of massage therapy and bath facilities—including, but not limited to, showers, baths, wet and dry heat rooms, pools and hot tubs—shall be deemed a massage establishment under this chapter. The term “massage establishment or massage business” includes a certified massage practitioner who is the sole owner, operator and employee of a massage business operating as a sole proprietorship.
“Massage practitioner” or “massage therapist” means any person to whom an unconditional CAMTC certificate has been issued pursuant to Section 4601(b) of the California Business and Professions Code. “Massage practitioner” shall not include a person to whom a conditional CAMTC certificate has been issued.
“Operator” or “massage establishment operator” means any and all owners of a massage establishment.
“Outcall massage” means the engaging in or carrying on of massage therapy for compensation in a location other than the business operations address set forth in the massage establishment’s business registration.
“Owner” or “massage establishment owner” means any of the following persons:
1. Any person who is a general partner of a general or limited partnership that owns a massage establishment.
2. Any person who has a five percent or greater ownership interest in a corporation that owns a massage establishment.
3. Any person who is a member of a limited liability company that owns a massage establishment.
4. Any person who has a five percent or greater ownership interest in any other type of business association that owns a massage establishment.
“Person” means any individual, partnership, firm, association, corporation, joint venture or combination of individuals.
“Practitioner” or “massage practitioner” shall be used interchangeably and mean any person who administers massage to another person, for any form of consideration (whether for the massage, as part of other services or a product, or otherwise).
“Reception area” or “waiting area” means an area immediately inside the front door of the massage establishment dedicated to the reception and waiting of patrons of the massage establishment and visitors, and which is not a massage therapy room or otherwise used for the provision of massage therapy services. (Ord. 577 § 1 (part), 2013: Ord. 530 § 1 (part), 2006)
5.44.030 CAMTC certification required.
A. Individuals. It shall be unlawful for any individual to practice massage therapy for compensation as a sole proprietorship or employee of a massage establishment or in any other capacity within the city unless that individual is a certified massage practitioner with a CAMTC certificate that is in full force and effect.
B. Massage establishments shall maintain on the premises and file at the city copies of or provide other evidence of the CAMTC certificates held by all massage practitioners and all persons providing massage therapy at that business or establishment. (Ord. 577 § 1 (part), 2013: Ord. 530 § 1 (part), 2006)
5.44.040 Business license.
A. Massage establishments shall apply for and furnish the information necessary to obtain a business license as required by Chapter 5.04. No business license shall be issued until zoning clearance is obtained. The business license shall be issued once a complete application for a license is properly submitted, all other conditions of this section are satisfied, and payment of the business license fee as provided in the city master fee schedule.
B. An application for a business license to operate a massage establishment shall include all of the following:
1. Legal name of the massage business.
2. Address and telephone number of the massage business.
3. Legal names of all owners of the massage business.
4. A list of all of the massage business’s employees and independent contractors who are performing massage and their CAMTC certifications.
5. Residence address and telephone number of all owners of the massage business.
6. Business address and telephone number of all owners of the massage business.
7. The form of business under which the massage establishment will be operating (i.e., corporation, general or limited partnership, limited liability company, or other form).
8. Each owner or operator of the massage business who is not a CAMTC-certified massage practitioner shall submit an application for a background check, including the following: the individual’s business, occupation, and employment history for the five years preceding the date of the application; the inclusive dates of such employment history; and the name and address of any massage business or similar business owned or operated by the individual whether inside or outside the city.
9. For all owners, a valid and current driver’s license and/or identification issued by a state or federal agency or other photographic identification bearing a bona fide seal by a foreign government.
10. For all owners, a signed statement that all of the information contained in the application is true and correct; that all owners shall be responsible for the conduct of the business’s employees or independent contractors providing massage services; and acknowledging that failure to comply with California Business and Professions Code Section 4600 et seq., any local, state, or federal law, or the provisions of this chapter may result in revocation of the establishment’s business license.
C. Issuance. Before issuance of the business license, the foregoing documentation shall be reviewed and approved by the chief of police or his designee. A business license shall be valid for one year from the date of issuance. No reapplication will be accepted within one year after an application or renewal is denied or a license is revoked.
D. Amendment. A massage business shall apply to the city to amend its business registration within thirty days after any change in the information listed in the application, including, but not limited to, the hiring or termination of certified massage practitioners or change of the business’s address.
E. Renewal. A massage business shall apply to the city to renew its business license at least thirty days prior to the expiration of said business license. If an application for renewal of a business license and all required information is not timely received and the license expires, no right or privilege to provide massage shall exist.
F. A massage establishment’s business license may be suspended, revoked or restricted for violations of California Business and Professions Code Sections 4600 through 4620. Any appeal related to a suspension, revocation or restriction shall be conducted in accordance with Section 1.04.110.
G. Massage establishments shall notify the city of any intent to rename, change management or convey the business.
H. It shall be unlawful for any business to provide massage for compensation within the city unless all individuals employed by the massage business to perform massage, whether as an employee, independent contractor, or sole proprietorship, are certified massage practitioners and said business has obtained a valid city business registration certificate as provided in this chapter. (Ord. 577 § 1 (part), 2013: Ord. 530 § 1 (part), 2006. Formerly 5.44.080)
5.44.050 Notifications.
The owner of a massage establishment shall immediately report to the chief of police any of the following:
A. Arrests of any employees or owners of the registrant’s massage business for an offense other than a misdemeanor traffic offense;
B. Resignations, terminations, or transfers of practitioners employed by the registrant’s massage business;
C. The occurrence of any event involving the registrant’s massage business or the massage practitioners employed therein that constitutes a violation of this chapter, state or federal law. (Ord. 577 § 1 (part), 2013: Ord. 530 § 1 (part), 2006. Formerly 5.44.130)
5.44.060 Exemptions.
The provisions of this chapter shall not apply to the following classes of individuals or businesses while engaged in the performance of their duties:
A. Physicians, surgeons, chiropractors, dentists, osteopaths, nurses or any physical therapists who are duly licensed to practice their respective professions in the state of California and persons working directly under the supervision of or at the direction of these licensed persons, working at the same location as the licensed person, and administering massage services subject to review or oversight by the licensed person.
B. Barbers and beauticians who are duly licensed under the laws of the state of California while engaging in practices within the scope of their licenses, except that this provision shall apply solely to the massaging of the neck, face and/or scalp, hands or feet of the clients.
C. Hospitals, nursing homes, mental health facilities, or any other health facilities duly licensed by the state of California, and employees of these licensed institutions, while acting within the scope of their employment.
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.
F. Individuals administering massages or health treatment involving massage to persons participating in single-occurrence athletic, recreational or festival events, such as health fairs, road races, track meets, triathlons and other similar events; provided, that all of the following conditions are satisfied:
1. The massage services are made equally available to all participants in the event;
2. The event is open to participation by the general public or a significant segment of the public such as employees of sponsoring or participating corporations;
3. The massage services are provided at the site of the event and either during, immediately preceding or immediately following the event;
4. The sponsors of the event have been advised of and have approved the provision of massage services;
5. The persons providing the massage services are not the primary sponsors of the event. (Ord. 577 § 1 (part), 2013: Ord. 530 § 1 (part), 2006. Formerly 5.44.050, 5.44.060)
5.44.070 Operating and sanitation requirements.
All massage, bathing or other similar establishments shall comply with the following operating and sanitation requirements:
A. Advertising. No such 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 describes or depicts any portion of the human body in a manner, or with the use of descriptive language, which would reasonably suggest to prospective patrons that any service is available other than those services described in the definition of “massage” in Section 5.44.020.
B. List of Services. A list of services shall be posted in an open, public place on the premises, and shall be described in readily understood language. Outcall service providers shall provide such a list to clients in advance of performing any service. No owner, operator, responsible managing employee, manager or permittee shall permit, and no massage therapist shall offer to perform, services other than those posted.
C. Sanitation and Operations. All establishments shall comply with the following minimum requirements:
1. Employees’, Technicians’ Dress. All massage establishment operators, their employees, and all massage practitioners shall perform their work fully clothed, be clean and wear clean outer garments whose use is restricted to the establishment. All outer garments shall be of a fully opaque, nontransparent material and provide complete covering from at least the mid thigh to two inches below the collarbone. The midriff may not be exposed.
2. Sanitized Skin. All persons shall thoroughly wash their hands with soap and water or any equally effective cleansing agent immediately before providing massage therapy to a patron. No massage therapy shall be provided upon a surface of the skin or scalp of a patron where such skin is inflamed, broken (e.g., abraded, cut) or where a skin infection or eruption is present.
3. Disease Control. No person afflicted with an infection or parasitic infestation capable of being transmitted to a patron shall knowingly provide massage therapy to a patron, or remain on the premises of a massage business or establishment while so infected or infested. Infections or parasitic infestations capable of being transmitted to a patron include, but are not limited to: (a) cold, influenza or other respiratory illness accompanied by a fever, until twenty-four hours after resolution of the fever; (b) streptococcal pharyngitis (“strep throat”), until twenty-four hours after treatment has been initiated and twenty-four hours after resolution of fever; (c) purulent conjunctivitis (“pink eye”), until examined by a physician and approved for return to work; (d) pertussis (“whooping cough”), until five days of antibiotic therapy have been completed; (e) varicella (“chicken pox”), until the sixth day after onset of rash or sooner if all lesions have dried and crusted; (f) mumps, until nine days after onset of parotid gland swelling; (g) tuberculosis, until a physician or local health department authority states that the person is noninfectious; (h) impetigo (bacterial skin infection), until twenty-four hours after treatment has begun; (i) pediculosis (head lice), until the morning after first treatment; and (j) scabies (“crabs”), until after treatment has been completed. Blood-borne diseases, such as HIV/AIDS and hepatitis B (HBV), shall not be considered infectious or communicable diseases for the purpose of this subsection.
4. Doors to dressing rooms and treatment rooms shall open inward, and may not be locked. Draw drapes, curtain enclosures, or accordion pleated closures are acceptable on all inner dressing and treatment rooms in lieu of doors. Dressing rooms and toilet facilities complying with the city building code shall be provided.
5. Linens. All establishments shall be provided with clean, laundered sheets and towels in sufficient quantity which shall be laundered after each use thereof and stored in closed, sanitary cabinets. Heavy white paper may be substituted for sheets; provided, that such paper is used only once for each person and then discarded into a sanitary receptacle. Approved sanitary receptacles shall be provided for the storage of all soiled linens.
6. Facilities. At least one entrance door, allowing access to the establishment and any building it may be in, shall remain unlocked during business hours, except in the instance that there is no staff available to ensure security for clients, massage practitioners and employees who are behind closed doors. All premises and facilities shall be maintained in a clean and sanitary condition, and shall be thoroughly cleaned each day of operation. The premises and facilities shall meet all code requirements of the city as to safety of the structure, adequacy of plumbing, heating, ventilation and waterproofing of rooms where showers, water or steam baths are given.
7. Patron Facilities. Patrons of the establishments shall be furnished with securable locker facilities, where the patron has the control of the key, and security deposit facilities for the protection of their valuables.
8. Hours. Massage establishment operations shall be carried on or conducted, and the premises shall be open, only between the hours of seven a.m. and ten p.m. A massage commenced prior to ten p.m. shall nevertheless terminate at ten p.m., and all clients must exit the premises at that time. It is the obligation of the massage establishment to inform clients of the requirement that services must cease at ten p.m.
9. Handicapped Areas. Each establishment which begins operations after the effective date of the ordinance codified in this chapter must have handicap access and restrooms equipped for handicapped patrons. Facilities operating as of the effective date of the ordinance codified in this chapter which do not have handicap access and/or restrooms equipped for handicapped patrons shall be classified as nonconforming uses, exempt from the requirements of this subsection unless/until building permits are issued for remodel of the facility in which the establishment operates or the establishment relocates.
10. Changing Rooms. Each establishment must have restrooms and changing rooms for male and female patrons. Wet and dry heat rooms, steam or vapor rooms or cabinets, toilet rooms, shower and bath rooms, tanning booths, whirlpool baths and pools shall be thoroughly cleaned and disinfected as needed, and at least once each day the premises are open, with a disinfectant approved by the county department of environmental health. Bathtubs shall be thoroughly cleaned after each use with a disinfectant approved by the county department of environmental health. All walls, ceilings, floors, and other physical facilities for the business must be in good repair, and maintained in a clean and sanitary condition. The 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.
11. Lighting. Minimum lighting shall be at least one sixty-watt light in each enclosure where massage services are performed. The light switch for the interior lights in each enclosure will be within the enclosure. There shall be no light in the enclosure that is operated from outside the enclosure. There shall be no sound device (i.e., buzzer or bell) that can be operated from outside the massage enclosure.
12. Records. Every massage establishment shall keep a written record of the date and hour of each treatment; the name and address of each patron; the name of the massage therapist administering the treatment; the name or initials of the employee entering the information; and the type of treatment administered. Such written record shall be open to inspection and copying upon demand only by officials charged with the enforcement of this chapter, but may not be used by a massage practitioner or operator for any other purpose unless otherwise required by law. Such records will be kept on the premises of the massage establishment for a period of two years.
13. No Residential Use. No part of the establishment shall be used for residential or sleeping purposes. Cooking or food preparation will be allowed on the premises for consumption by owners and employees only.
14. Sanitizing Instruments. Instruments utilized in performing massage shall not be used on more than one client unless they have been sterilized, using approved sterilization methods. All combs, brushes, and/or other personal items of grooming or hygiene that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be fully disinfected after each use.
15. All liquids, creams, or other preparations used on or made available to patrons shall be kept in clean and closed containers. Powders may be kept in clean shakers. All bottles and containers shall be distinctly and correctly labeled to disclose their contents. When only a portion of a liquid, cream or other preparation is to be used on or made available to a patron, it shall be removed from the container in such a way as not to contaminate the remaining portion.
D. Interior Doors. The doors of all massage rooms, bathing rooms, or cubicles within such establishment must remain unlocked during any time the establishment is occupied.
E. Physical Contact. No massage practitioners, massage establishment owners or their employees shall make intentional, occasional and/or repetitive contact with the genitals, anus, or areola (nipple) of another person. The patron’s genitals, pubic area, anus, and female patron’s breasts below a point immediately above the top of the areola must be fully draped at all times while any employee of the establishment is in the massage therapy room or cubicle with the patron.
F. Identification. CAMTC certification shall be worn by and clearly visible on the massage practitioner’s person during working hours and at all times when the massage practitioner is inside a massage establishment or providing outcall massage.
G. Certification Display. A copy of the CAMTC certificate and city business registration certificate of each and every massage practitioner employed in the business shall be displayed in the reception area or similar open public place on the premises. A massage practitioner shall operate only under the name specified in his or her CAMTC certificate and city registration. A massage establishment shall operate only under the name specified in its city business registration.
H. Alcohol and Drugs Prohibited. No person shall enter, be, or remain in any part of a massage establishment while in possession of an open container of alcohol, or consuming or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs. The owner, operator, responsible managing employee, or manager shall not permit any such person to enter or remain upon such premises.
I. School Use Prohibited. No massage establishment shall operate as a school of massage, or use the same facilities as that of a school of massage.
J. Reception Area. No massage establishment located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area shall block visibility into the interior reception and waiting area through the use of curtains, closed blinds, tints, or any other material that obstructs, blurs, or unreasonably darkens the view into the premises.
K. A list of the services available and the cost of such services shall be posted in the reception area within the massage premises, and shall be described in readily understandable language. Outcall service providers shall provide such a list to clients in advance of performing any service. No owner, manager, operator, or responsible managing employee shall permit, and no massage practitioner shall offer or perform, any service other than those posted or listed as required herein, nor shall an operator or a massage practitioner request or charge a fee for service other than that on the list of services.
L. No 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 that would reasonably suggest to prospective clients that any service is available other than those services listed as an available service, nor shall any massage establishment employ language in the text of such advertising that would reasonably suggest to a prospective client that any service is available other than those services as described in compliance with the provisions of this chapter.
M. All signs shall be in conformance with the current ordinances of the city of Foster City.
N. 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.
O. A massage practitioner shall operate only under the name specified in his or her CAMTC certificate and city registration. A massage establishment shall operate only under the name specified in its city business registration.
P. No invasive procedures shall be performed on any patron. Invasive procedures include, but are not limited to: (1) application of electricity which contracts the muscle; (2) application of topical lotions, creams, or other substances which affect living tissue, such as chemical peel preparations or bleaches; (3) penetration of the skin by metal needles; (4) abrasion of the skin below the nonliving, epidermal layers; (5) removal of skin by means of any razor-edged instrument or other device or tool; and (6) any needle-like instrument which is used for the purpose of extracting skin blemishes and other similar procedures. (Ord. 577 § 1 (part), 2013: Ord. 530 § 1 (part), 2006. Formerly 5.44.110)
5.44.080 Inspection by government officials.
A. All nonexempt massage establishments, and all massage establishments described in Business and Professions Code Section 4612(b)(1), shall permit representatives of the county health department, the city of Foster City police department, fire department, community development department, and/or other city or county departments or agencies to conduct a reasonable inspection of the public areas and areas otherwise open to plain view on or within the premises, to the extent allowed by law and during the regular business hours of the business or establishment, for the purpose of ensuring compliance with state and local law, including, but not limited to, Chapter 10.5 (commencing with Section 4600) of the California Business and Professions Code, the requirements of this chapter, or other applicable fire and health and safety requirements.
B. All massage therapists and massage practitioners shall provide their full, true name, and other names used, date of birth, California driver’s license number or California identification number, Social Security number, present residence address, telephone number, their sex, height, weight, color of hair, and color of eyes. Such other identification and information shall be provided as required by the chief of police or his representative, necessary to confirm the identity of those claiming to hold a valid CAMTC certificate.
C. All massage therapists, massage practitioners and establishments shall provide a complete definition of all services to be provided.
D. All massage therapists, massage practitioners and massage establishments shall notify the chief of police of any intention to rename, change management, or convey the massage business or establishment to another person or entity.
E. Nothing in this section shall be deemed to prohibit the above-described government officials from pursuing any and all available legal remedies to secure entry into and inspection of the premises of the business or establishment if such entry is refused, or for any other reason allowed by law.
F. It is a violation of this chapter for the business or establishment to prohibit or interfere with such lawful inspection of the premises at any time it is open for business. (Ord. 577 § 1 (part), 2013: Ord. 530 § 1 (part), 2006. Formerly 5.44.140)
5.44.090 Owner and operator responsibility—Denial, revocation, restriction or suspension of business registration.
The following provisions shall apply to all nonexempt massage establishments, and all massage establishments described in Section 4612(b)(1) of the California Business and Professions Code:
A. For the purpose of enforcement of the requirements of this chapter, all owners and operators of the business or establishment shall be responsible for the conduct of all of its employees, agents, independent contractors or other representatives, while on the premises of the business or establishment or providing massage therapy.
B. Notwithstanding Chapter 5.04, the city may:
1. Require the massage establishment in its application for a business registration, or for the renewal of a business registration, to provide relevant information to the activities of the business or establishment regulated by this chapter;
2. Make reasonable investigations into the information so provided;
3. Charge a business registration fee sufficient to cover the costs of the business licensing activities regulated by this chapter; and
4. Deny, revoke, restrict or suspend a business registration for either of the following causes: (a) an employee, agent, independent contractor or other representative of the business or establishment has committed a violation of this chapter, or of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code; or (b) the business or establishment has provided materially false information in its application for a business registration. (Ord. 577 § 1 (part), 2013: Ord. 530 § 1 (part), 2006. Formerly 5.44.170)
5.44.100 Remedies cumulative—Each day a separate offense.
Any person subject to this chapter who personally, or through an agent, employee, independent contractor or other representative, violates any provision of this chapter shall be guilty of a separate offense for each and every day during any portion of which any such violation is committed, continued or permitted by such person. All remedies provided herein shall be cumulative and not exclusive. (Ord. 577 § 1 (part), 2013)
5.44.110 Public nuisance.
Any use or condition caused or permitted to exist in violation of any of the provisions of this chapter shall be and is hereby declared a public nuisance and, as such, may be abated or enjoined from further operation pursuant to the municipal code. (Ord. 577 § 1 (part), 2013)
5.44.120 Criminal penalties.
Any person subject to this chapter who personally, or through an agent, employee, independent contractor or other representative, violates any provision of this chapter commits a misdemeanor. Any person convicted of a misdemeanor shall be subject to punishment by fine and/or imprisonment to the maximum extent permitted by state law. (Ord. 577 § 1 (part), 2013)
5.44.130 Civil injunction.
The violation of any provision of this chapter shall be and is hereby declared to be contrary to the public interest and shall, at the discretion of the city, create a cause for injunctive relief. (Ord. 577 § 1 (part), 2013)
5.44.140 Inspections.
Massage establishments shall permit the city to conduct reasonable inspections during regular business hours to ensure compliance with state and local laws, including but not limited to this chapter and California Business and Professions Code Sections 4600 through 4620, or applicable fire and health and safety requirements. (Ord. 577 § 1 (part), 2013)