Chapter 5.16
MASSAGE ESTABLISHMENTS1
Sections:
5.16.030 Massage establishment license required.
5.16.050 Massage therapist and massage practitioner certification.
5.16.060 Massage establishment license application requirements.
5.16.070 Grounds for issuance or denial of license.
5.16.080 Permits nontransferable.
5.16.090 Operational requirements.
5.16.100 Additional public health and safety regulations.
5.16.110 Notice of massage therapists and massage practitioners employed by massage establishments.
5.16.130 Inspection and enforcement.
5.16.150 Revocation or suspension of license.
5.16.010 Purpose.
This chapter is intended to provide for the orderly regulation of massage establishments in the interest of public health, safety, and welfare. (Ord. 427 § 2, 2018)
5.16.020 Definitions.
The following words and phrases as used in this chapter shall have the significance and meaning attached to them in this chapter unless otherwise clearly apparent from the context:
“Applicant” means a person who has submitted to the city an application for a massage establishment permit under this chapter.
“CAMTC” means the California Massage Therapy Council created under California Business and Professions Code Section 4602.
“CAMTC certificate” means a valid certificate issued by CAMTC pursuant to Chapter 10.5 of Division 2 of the California Business and Professions Code.
“CAMTC certified” means any massage practitioner or massage therapist that has a valid CAMTC certificate.
“City” means the city of Highland.
“City council” means the city council of the city of Highland.
“Compensation” means the payment, loan, advance, donation, contribution, deposit, or gift of money or anything of value.
“Licensee” means a person who has obtained a license under this chapter to operate a massage establishment in the city.
“Massage” means the scientific manipulation of the soft tissues performed for compensation.
“Massage establishment” means a fixed location where massage is performed for compensation, excluding a location where massage is only provided on an outcall basis.
“Massage practitioner” means a person who is certified by the CAMTC pursuant to California Business and Professions Code Section 4604.2 and who administers massage for compensation.
“Massage therapist” means a person who is certified by the CAMTC under California Business and Professions Code Section 4604 and who administers massage for compensation.
“Notice address” means the address designated by the applicant or the licensee for the mailing of all notices and written communications from the city to the applicant or licensee.
“Outcall massage” means any massage performed by a massage therapist or massage practitioner at a location designated by the client or the massage therapist or the massage practitioner, other than at a massage establishment.
“Owner” means an owner of 10 percent or more of the business of a massage establishment.
“Person” means and includes a person, firm, corporation, partnership, association or any other form of business organization or group. (Ord. 427 § 2, 2018)
5.16.030 Massage establishment license required.
A. It is unlawful for any person to practice, engage in, or carry on the business or activities of a massage establishment within the city without having a license under this chapter to do so and complying with all regulations and requirements hereinafter contained and set forth. A massage therapist or massage practitioner employed by a massage establishment, who is not the owner of the massage establishment, shall not be required to possess a massage establishment license.
B. It is unlawful for any owner, operator, responsible managing employee, manager or licensee in charge of or in control of a massage establishment to employ a person to act as a massage therapist or massage practitioner who does not possess a valid CAMTC certificate that has not been suspended or revoked.
C. In addition to any other license, permit or approval required under applicable law, every person who owns or operates a massage establishment shall possess and maintain a city business license and shall ensure that the applicable business license taxes and fees are paid. A massage therapist or massage practitioner employed by a massage establishment shall not be required to possess and maintain a city business license for himself or herself, unless that massage therapist or massage practitioner also performs massage within the city as a sole provider outside of a massage establishment. (Ord. 427 § 2, 2018)
5.16.040 Exemptions.
This chapter shall not apply to the following classes of individuals:
A. Physicians, surgeons, chiropractors, osteopaths, or physical therapists who are duly licensed to practice their respective professions in the state of California, and persons working at the place of business of, or under the supervision of, a licensed physician, surgeon, chiropractor, osteopath or physical therapist;
B. Nurses who are registered as such under the laws of the state of California;
C. Barbers, beauticians and cosmetologists who are duly licensed under the laws of the state of California while engaging in practice within the scope of their licenses, except that this exemption shall apply solely to the massaging of the feet, hands, neck, face, and/or scalp of the customer or client;
D. Hospitals, nursing homes, sanatoriums, or other health care facilities duly licensed by the state;
E. Accredited high schools, junior colleges, and colleges or universities whose coaches and trainers are acting within the scope of their employment;
F. Trainers of amateur, semiprofessional or professional athletes, or athletic teams, or personal athletic trainers;
G. Acupuncturists who are duly certified to practice their profession in the state of California; and
H. Massage therapists and massage practitioners who (1) perform massages at beauty salons, nail salons, or day spas where massage services account for less than 30 percent of the gross square footage of the business, or (2) perform outcall massage only. Massage therapists and massage practitioners who meet this criteria must comply with HMC 5.16.030, 5.16.050 and 5.16.100. (Ord. 427 § 2, 2018)
5.16.050 Massage therapist and massage practitioner certification.
A. No person may practice massage in the city who does not have a CAMTC certificate.
B. Every massage therapist and massage practitioner providing or offering massage in the city must:
1. Work at a city-permitted massage establishment as an employee or independent contractor; or
2. Obtain a city business license if providing massage for compensation in a location identified in HMC 5.16.040(H). (Ord. 427 § 2, 2018)
5.16.060 Massage establishment license application requirements.
A. An application for a massage establishment license shall contain the following information:
1. The legal name, address, and telephone number of the massage establishment, and the form of business under which the massage establishment will be operating.
2. The notice address. It shall be the responsibility of the applicant or licensee to immediately inform the city, in writing, of any changes to the notice address.
3. A floor plan to scale indicating how and in what location(s) massages will be conducted within the premises.
4. The legal name of all owners and a copy of a valid government-issued identification card that has a photograph.
5. The home address and telephone numbers of all owners of the massage establishment, any previous home addresses for a period of five years immediately prior to the date of the application, and the dates of residence at each location.
6. For each owner, a copy of his or her CAMTC certificate. If the owner does not have a CAMTC certificate, the applicant is subject to a background check and must submit a photograph taken within the past five years and his or her fingerprints taken by a certified California Live Scan Fingerprinting Center for the purpose of conducting a background check on behalf of the city to determine the criminal history of the owner, including whether the owner has been convicted of any felony, misdemeanor, infraction, municipal code violation, or has been held liable for any administrative or civil action for an act that is substantially related to the practice of massage.
7. For each person to be employed or retained by the massage establishment to perform massage services, a photograph of only him or herself taken within the past five years and a copy of his or her CAMTC certificate.
8. The name and address of the owner of the real property upon, in, or from which the massage establishment will be operated. In the event that the owner of the massage establishment is not the owner of the real property, the application shall include a copy of any written lease between the massage establishment and the property owner authorizing use of the premises for a massage establishment or, if there is no written lease, a written, notarized acknowledgment from the property owner declaring that the property owner has been advised that a massage establishment will be operated by the applicant upon, in, or from the property owner’s real property.
B. Each application for a massage establishment license shall be accompanied by a nonrefundable fee in an amount established by resolution of the city council.
C. Throughout the term of the massage establishment license, the licensee must notify the city in writing within 10 business days of any changes to any of the information required to be provided in the application.
D. Duration and Renewal of License.
1. Every massage establishment license issued under this chapter shall terminate at the expiration of one year from the date of its issuance unless revoked prior to said termination.
2. Any renewal of a massage establishment license issued under this chapter shall be pursuant to the same requirements, procedures, provisions and regulations set forth in this chapter for an original license. No application for renewal of the license shall be accepted earlier than 90 days prior to expiration of the license. (Ord. 427 § 2, 2018)
5.16.070 Grounds for issuance or denial of license.
A massage establishment license shall be issued by the community development director or his or her designee, unless any of the following conditions exist:
A. The applicant has made a material misrepresentation in the application.
B. If the application is for renewal of a license, the applicant has violated conditions of the previous license, or ordinances or regulations of the city, in the conduct of the business or activity.
C. The building, structure, premises, or the equipment used to conduct the business activity fails to comply with this chapter and all applicable health, zoning, fire, building and safety laws of the state of California or of the city.
D. Any of the personnel who will be administering massages at the massage establishment are not CAMTC certified.
E. Any applicant who is subject to a background check as set forth in HMC 5.16.060(A)(6) has been:
1. Convicted of a violation of Sections 266i, 315, 316, 318, or subdivision (b) of Section 647 of the California Penal Code, or proof that the applicant has been convicted in any other state of any offense which, if committed or attempted in this state, would have been punishable as one or more of the above-mentioned offenses of this subsection.
2. Convicted of any felony offense involving the sale of a controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code or proof that the applicant has been convicted in any other state of any offense which, if committed or attempted in this state, would have been punishable as one or more of the above-mentioned offenses of this subsection.
3. Convicted of any felony offense involving the sale of a controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code or any similar law in any state or other jurisdiction.
F. Any applicant who is subject to a background check as set forth in HMC 5.16.060(A)(6) and is 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 California Penal Code), or any similar law in any state or other jurisdiction. (Ord. 427 § 2, 2018)
5.16.080 Permits nontransferable.
All licenses issued under this chapter are nontransferable, both as to location and the person holding the license. (Ord. 427 § 2, 2018)
5.16.090 Operational requirements.
The following regulations shall apply to all massage establishments:
A. A massage establishment may not lease, sublease, grant a license or otherwise grant permission to any business or individual who is not employed by that establishment to use a room or space within the facility to provide massage for compensation if that individual or other business does not obtain his, her or its own massage establishment license. A beauty salon, nail salon, or day spa where massage services are performed on less than 30 percent of the gross square footage of the business shall not be required to obtain a massage establishment permit or comply with this subsection.
B. A massage establishment must have readily available its massage establishment license, and not a copy thereof, at all times, for an inspection.
C. A massage establishment shall keep on the premises an updated list of names of all persons employed by the massage establishment, and dates of employment and termination. These records must be maintained on the premises for each employee from the date of employment until two years following his or her termination.
D. A massage establishment shall keep on the premises an individual photograph taken within the past five years of each employee, massage therapist, and massage practitioner employed at that location. These photographs must be maintained on the premises from the date of employment until two years following the termination of each employee, massage therapist or massage practitioner.
E. A massage establishment shall keep on the premises copies of all massage practitioners’ and massage therapists’ CAMTC certificates.
F. No massage establishment shall be open between the hours of 10:00 p.m. and 7:00 a.m.
G. A list of all currently available services shall be conspicuously posted in the reception area of the massage establishment at all times. No massage establishment shall allow anyone on the premises to offer or provide any services other than those posted.
H. Exterior doors must be unlocked during business hours, unless the massage establishment is owned by one individual with one or no employees or independent contractors.
I. The massage establishment must have at least one closed cabinet or bin for clean linens and towels and another closed cabinet or bin for soiled linens and towels.
J. The massage establishment must provide clean and sanitary towels, sheets and linens; no common use or reuse of these items is allowed.
K. A massage establishment shall either dispose of or launder bathrobes or garments provided for patrons after every use.
L. Walls, ceilings, floors, pools, showers, bathtubs, steam and vapor rooms, and all physical facilities must be in good repair and in clean and sanitary condition.
M. Wet and dry heat rooms, steam or vapor rooms, toilet rooms, showers and bathrooms, tanning booths, whirlpool baths and pools shall be thoroughly cleaned and disinfected at least once per business day.
N. Bathtubs shall be cleaned and disinfected after each use.
O. The massage establishment shall not have any living quarters.
P. No person shall enter or remain in any part of a massage establishment while in possession of, consuming, or using any alcoholic beverage.
Q. Massage establishments shall not sell or serve food on the premises. Massage establishments may serve nonalcoholic beverages on the premises. (Ord. 427 § 2, 2018)
5.16.100 Additional public health and safety regulations.
A. A massage therapist and massage practitioner shall ensure that every patron is draped with a clean, opaque towel or garment that covers at least his or her genitalia and female breasts.
B. Instruments used in administering massage must be disinfected and sterilized after each use.
C. All massage liquids, powders, creams, or other preparations must be kept in clean, closed, labeled containers. Powders must be kept in clean shakers or containers.
D. Portions of liquids, powders, creams or other preparations used or made available shall be dispensed so as to not contaminate the remaining portions.
E. While providing massage services, massage therapist and massage practitioners shall be dressed appropriately in clean clothing that shall not include any of the following:
1. Attire that is transparent, see-through, or substantially exposes the certificate holder’s undergarments.
2. Swim attire, if not providing a water-based massage.
3. Attire that exposes the massage therapist’s or massage practitioner’s breasts, buttocks, or genitals.
4. Attire worn in a manner that constitutes a violation of California Penal Code Section 314.
5. Attire that is deemed by the CAMTC to constitute unprofessional attire. (Ord. 427 § 2, 2018)
5.16.110 Notice of massage therapists and massage practitioners employed by massage establishments.
A. A massage establishment shall notify the city, in writing, within 10 business days of hiring any massage therapist or massage practitioner that is not listed on the massage establishment application, identify the date of hire, and provide a copy of the massage therapist’s or massage practitioner’s CAMTC certificate and individual photograph of the massage therapist or massage practitioner.
B. A massage establishment shall notify the city, in writing, within 10 business days of the termination of employment or services, of the name and termination date of the massage therapist or massage practitioner whose services and/or employment has terminated. (Ord. 427 § 2, 2018)
5.16.120 Record of treatment.
A massage establishment shall keep a record of the date and hour of each treatment, the name and address of the patron, and the name of the massage therapist or massage practitioner administering such treatment. The records shall be maintained for a period of two years. Upon reasonable notice, the records shall be open to inspection by officials charged with the enforcement of these provisions for the purposes of law enforcement and for other purposes related to this chapter. If the city is unable to obtain consent from the massage establishment to inspect the records, the city may seek a court order to conduct such an inspection. (Ord. 427 § 2, 2018)
5.16.130 Inspection and enforcement.
Officers of the police department, environmental health services, the building and safety department, the city manager or his/her designee, and the fire department shall have the right to enter any massage clinic during regular business hours as specified in this chapter to make reasonable inspection to ascertain whether the provisions of this chapter are being met, provided reasonable and normal business operations shall not be interfered with. (Ord. 427 § 2, 2018)
5.16.140 Abatement procedure.
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 district attorney or the city attorney may, in addition to, or in lieu of any other legal or criminal proceedings, 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 establishment and restrain and enjoin any person from operating, conducting or maintaining a massage establishment contrary to the provisions of this chapter. (Ord. 427 § 2, 2018)
5.16.150 Revocation or suspension of license.
A. A license issued under this chapter may be revoked or suspended on one or more of the following grounds:
1. That the licensee practiced fraud or deceit in obtaining a license under this chapter.
2. That the licensee or the licensee’s employee violated a provision or provisions of this chapter or state law regulating massage establishments.
3. That the facilities and operations of the massage establishment are not kept in compliance with this chapter as set forth in HMC 5.16.090, and that the licensee has failed to promptly remedy any deficiency of which the licensee has been notified. For purposes of this section “notice” shall mean notice given personally or by leaving notice at the licensed premises, or by first class mail, postage prepaid, to the notice address designated by the licensee.
4. That the massage establishment has employed, allowed or permitted a person to perform massages in the massage establishment who is not CAMTC certified.
5. That the license was issued in error.
B. Upon determination of grounds to revoke a license, the city shall cause a notice of revocation to be mailed by first class mail, postage prepaid, to the notice address designated by the licensee. (Ord. 427 § 2, 2018)
5.16.160 Appeals.
A. Where there are grounds to deny, suspend or revoke a massage establishment permit, the community development director shall provide 15 calendar days’ prior written notice, mailed to the applicant or licensee’s notice address, specifying the grounds for such action. The decision of the community development director shall be based on a preponderance of the evidence.
B. The applicant or licensee may appeal the decision of the community development director by filing a written notice of appeal with the city clerk within 15 calendar days after deposit of the decision in the mail, specifying in detail the grounds for such appeal. The notice of appeal shall be accompanied by a nonrefundable fee established by the city’s then current fee schedule. Failure to file a timely appeal will be considered a failure on the part of the applicant or licensee to exhaust his or her administrative remedies for the purpose of seeking judicial review. In the event an appeal is timely filed, the suspension or revocation of a massage establishment permit shall not be effective until a final decision has been rendered by the city council.
C. The city council shall hear and decide all appeals de novo. The following procedures shall govern the hearing conducted by the city council: All parties involved shall have a right to: (1) offer testimonial, documentary and tangible evidence bearing on the issues; (2) be represented by counsel; and (3) confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing may be continued for a reasonable time for the convenience of a party or a witness.
D. The city clerk shall provide at least 10 calendar days’ prior written notice of the date, time, and place of the hearing. The decision of the city council shall be rendered within 30 days from the close of the hearing, and shall be mailed to the notice address of the applicant or licensee.
E. The decision of the city council shall be final and shall be subject to judicial review according to the provisions and time limits set forth in California Code of Civil Procedure Section 1094.6.
F. The city council may in its sole discretion appoint a hearing officer to hear and act on any appeal. If the city council designates a hearing officer, the decision of the hearing officer shall be final and nonappealable, and shall be subject to judicial review according to the provisions and time limits set forth in California Code of Civil Procedure Section 1094.6 and make a recommendation to the city council.
G. Notwithstanding any other provision of this chapter, where a notice of revocation or suspension has been issued by the community development director to the massage establishment, the community development director shall not issue a massage establishment permit for a new massage establishment at the same location unless and until such notice of revocation or suspension is dismissed by the community development director; or a final determination is made that the current massage establishment permit is not or should not be suspended or revoked. (Ord. 427 § 2, 2018)
Prior legislation: Ords. 153 and 157.