Chapter 5.36 MASSAGE ESTABLISHMENTS*

A. The permit requirements and restrictions imposed by this chapter are reasonably necessary to protect the health, safety and welfare of the citizens of the city. The city is authorized, by virtue of the State Constitution and Section 51030 et seq. of the Government Code, to regulate massage establishments by imposing reasonable standards relative to the education and experience of massage therapists and reasonable conditions on the operation of massage establishments.

B. Massage establishments have been found to present opportunities for unlawful activity.

C. The California legislature and the courts have long recognized the necessity of imposing reasonable regulations and standards for the operation of massage establishments, including but not limited to minimum educational and experience requirements, passage of a practical examination of competence, sanitary conditions, hours of operation, and other operational regulations designed to minimize opportunities for illegal activities and to ensure the protection of the health, safety and welfare of citizens.

D. Some establishments, seeking to avoid regulations applicable to massage establishments, attempt to characterize or advertise themselves as “relaxation” or feature other services, including, but not limited to, tanning, hot towel wraps, steam baths, or saunas. Such establishments are considered to be similarly susceptible to opportunities for unlawful activities, and are therefore regulated pursuant to this chapter.

E. The presence of untrained, inexperienced trainees in massage establishments would foster and encourage prostitution. Further, there is a significant risk of injury to clients of massage establishments by improperly trained and/or educated massage therapists.

F. The costs of investigation, surveillance and prosecution of criminal activities in or at massage establishments, both in terms of requirements for specialized training and operations, are extraordinary.

G. Effective investigation, enforcement and prosecution of illegal activities in or at massage establishments often require a disproportionate diversion of public safety and law enforcement resources not only from within the city, but also from other jurisdictions.

H. Minimum hours of training and experience, restrictions on advertising, and standards for professional conduct contained in this chapter are consistent with recommended standards promulgated by nationally recognized trade organizations for massage therapists.

I. Licensing standards pertaining to massage establishments are necessary to protect the public’s health and safety and the personal safety of massage therapists. This chapter takes into account the separate certification process of the state Massage Therapy Organization under Business and Professions Code Sections 4600—4620. (Ord. 06-018 § 1 (part), 2006) (Ord. No. 2009-005, § 1, 10-6-09)

5.36.020 Definitions.

Unless the particular provision or the context otherwise requires, the definitions and provisions contained in this section shall govern the construction, meaning, and application of words and phrases as used in this chapter.

“Employee” means any person, other than a massage therapist, who may render service to the massage establishment permittee, and who receives compensation from the massage establishment permittee or an agent for the permittee, and who has no physical contact with the customers or clients.

“Massage” means any method of treating the external parts of the body for remedial, health, or hygienic purposes by means of pressure on or friction against; or stroking, kneading, rubbing, tapping, pounding; or stimulating the external parts of the body with the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliances; or with or without supplementary aids, such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in this practice and shall include herbal body wraps.

“Massage establishment” means any establishment having a fixed place of business where any person, firm, association, partnership, or corporation engages in, conducts, or carries on, or permits to be engaged in, conducted or carried on, any business of giving massage, baths, administration of fomentation, electric or magnetic treatments, alcohol rubs, or any other type of system for treatment or manipulation of the human body with or without any character of bath, such as Turkish, Russian, Swedish, Japanese, vapor, shower, electric tub, sponge, mineral, fomentation, or any other type of bath.

“Massage therapist” means any person who administers to another person, for any form of consideration, “massage” as defined in this section and has completed at least five hundred fifty hours of training and received a massage therapist permit pursuant to Section 5.36.070 of this chapter.

“Off-premises” or “off-premises massage” means any business where the primary function of such business is to engage in or perform massage not at a fixed location but at a location designated by the customer or client, such as a house-call. All massage therapists who plan to do off-premises massage shall also apply for and receive a city business license and a home occupation permit, if applicable.

“Recognized school of massage” means any school or institution of learning which teaches the theory, ethics, practice, profession or work of massage, which has been approved pursuant to the California Education Code. Schools offering a correspondence course not requiring attendance shall not be deemed a state-recognized school. The city shall have a right to confirm that the applicant has actually attended class in a state-recognized school.

“State certificate holder” means a person who holds a current, valid state certificate from the massage therapy organization as a massage practitioner or a massage therapist under Business and Professions Code Sections 4600—4620. (Ord. 06-018 § 1 (part), 2006) (Ord. No. 2009-005, § 2, 10-6-09)

5.36.030 Permits required.

It is unlawful for any person, association, partnership or corporation to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on in or upon any premises within the city, massage therapist services or the operation of a massage establishment as herein described, without first having obtained a regulatory permit issued by the city pursuant to the provisions of this chapter, as well as a use permit pursuant to the provisions of Section 17.62.120 of this code.

A massage therapist properly licensed under Business and Professions Code Sections 4600—4620 is not required to obtain a permit pursuant to this chapter. Such certificate holder shall, however, obtain an annual registration certificate from the police department. The registration application shall include: name, address, telephone, place of employment, whether the applicant intends to engage in off premises massage, and evidence of state certification. The state certificate holder shall notify the department within thirty days of any change in the information provided. There is no charge for this registration application or certificate. (Ord. 06-018 § 1 (part), 2006) (Ord. No. 2009-005, § 3, 10-6-09)

5.36.040 Exceptions.

The provisions of this chapter shall not apply to the following classes of individuals while engaged in the performance of the duties of their respective professions:

A. Physicians, surgeons, chiropractors, osteopaths, or physical therapists that are duly licensed to practice their respective professions in the state, while performing activities encompassed by such professional licenses.

B. Nurses registered under the laws of the state, acting within the scope of their employment.

C. Cosmetologists, barbers, and beauticians, who are duly licensed under the laws of the state; but only provided that they are lawfully engaged in providing the professional services performed pursuant to such license, and persons who are licensed to practice any healing art pursuant to Division 2, commencing with Section 500, of the State Business and Professions Code or the Chiropractic Act while engaging in acts within the scope of their license.

D. Hospitals, nursing homes, sanatoriums, or other health facilities duly licensed by the state.

E. Coaches and trainers in accredited high schools, junior colleges, and colleges or universities acting within the scope of their employment.

F. Massage performed in the office of a licensed physician, surgeon, chiropractor, or osteopath while under the supervision of such licensed medical professional does not require a massage establishment permit, and may be performed by a massage therapist.

G. Individuals administering massages 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 the following conditions are met:

1. The massage services are made equally available to all participants at 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 companies;

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 and have approved the provisions of the massage services; and

5. The persons providing the massage services are not the primary sponsors of the event.

H. A massage therapist properly licensed under Business and Professions Code Sections 4600—4620 is not required to obtain a permit pursuant to this chapter. Such certificate holder shall, however, obtain an annual registration certificate from the police department. The registration application shall include: name, address, telephone, place of employment, whether the applicant intends to engage in off premises massage, and evidence of state certification. The state certificate holder shall notify the department within thirty days of any change in the information provided. There is no charge for this registration application or certificate.

I. Notwithstanding anything to the contrary herein, massage establishments solely owned by state certificate holders or which employ only persons who hold a state certificate remain subject to all health and safety requirements set forth in this chapter unless specifically exempted. Such health and safety requirements include Section 5.36.120, subsections F, G, J, K, L and O through U, and Section 5.36.130. (Ord. 06-018 § 1 (part), 2006) (Ord. No. 2009-005, §§ 4, 5, 10-6-09)

5.36.050 Massage establishment permit application fee.

Any application for a massage establishment or massage therapist permit, or for the renewal thereof, shall be accompanied by a nonrefundable fee as set by resolution of the city council and shall be paid to the city to defray, in part, the cost of the investigation and report required by this chapter. A massage therapist permit shall not authorize the operation of a massage establishment. A person licensed as a massage therapist who desires to operate a massage establishment also must obtain a massage establishment permit. (Ord. 06-018 § 1 (part), 2006)

5.36.060 Application for massage establishment permit.

A. Any application for a massage establishment permit shall be made with the chief of police. The application and fee required under this section shall be in addition to any license, permit or fee required under any other chapter of this code.

B. Each application for a permit shall contain written proof of the following information:

1. The full true name under which the business will be conducted;

2. The address where the business is to be conducted;

3. The applicant’s full, true name, any other names used, date of birth, California driver’s license number or California identification number, social security number, present residence address, and telephone number;

4. The applicant’s business, occupation, and employment history for five years preceding the date of application, and the inclusive dates of same;

5. The permit history of the applicant: whether such person has ever had any permit or license issued by any agency, board, city, county, territory, or state; the date of issuance for such permit or license, whether the permit or license was revoked or suspended; or if a vocational or professional license or permit was issued, revoked, or suspended, and the reason therefor;

6. All convictions for any crime involving conduct which requires registration under any state law similar to and including California Penal Code Section 290, or of conduct which is a violation of the provisions of any state law similar to and including California Penal Code Sections 314, 315, 316, 318, 647, or any crime involving dishonesty, fraud, deceit, or moral turpitude. The application shall include an authorization for the city to obtain any available criminal offender record information relating to applicant, and to update such information on an annual basis if a license is granted;

7. A complete definition of all services to be provided;

8. The name and address of any massage business or other like establishment owned or operated by any person whose name is required to be given pursuant to this section wherein the business or profession of massage is conducted;

9. Acceptable written proof that the applicant is at least eighteen years of age;

10. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the names and residence addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of that corporation;

11. If the applicant is a partnership, the application shall set forth the name and residence address of each of the partners, including limited partners. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership as filed with the county clerk. If one or more of the partners is a corporation, the provisions of this subsection pertaining to corporate applicants shall apply;

12. The name of the person designated by the applicant, corporation or partnership to act as its responsible managing officer in charge of the premises;

13. A description of any other business to be operated on the same premises, or on adjoining premises, owned or controlled by the applicant;

14. The name and address of the owner and lessor of the real property upon or in which the business is to be conducted. In the event the applicant is not the legal owner of the property, a copy of the lease and a notarized acknowledgment must accompany the application from the owner of the property that a massage establishment will be located on his/her property;

15. Two passport-sized photographs of the applicant for identification card, taken within the three-month period immediately preceding the application;

16. Authorization for the city, its agents and employees to seek information and conduct an investigation into the truth of the statements set forth in the application and the qualifications of the applicant for the permit;

17. Such other information which the chief of police determines is reasonably required to properly evaluate the application.

C. The application for a permit does not authorize performance of a massage unless and until such permit has been properly granted. Possession of a valid massage establishment permit does not by itself authorize the possessor to perform work for which a massage therapist permit is required.

D. Upon receipt of a complete written application for a massage establishment permit, the chief of police or an authorized representative, shall conduct an investigation in such a manner as he or she deems appropriate, in order to ascertain whether such permit should be issued as requested.

E. Planning division staff will review the application and make a determination if the proposed use is permitted or conditionally permitted in the proposed zoning district. (Ord. 06-018 § 1 (part), 2006)

5.36.070 Application for massage therapist permit.

A massage therapist permit is valid for off-premises massage, and for any massage establishment that is properly licensed with the city of San Pablo. Any person desiring a massage therapist permit shall file a written application on the required form to the police department which shall verify the truthfulness of the application. All massage therapists who plan to do off-premises massage shall also apply for and receive a city business license and a home occupation permit, if applicable.

A. The application shall contain the following information:

1. Full complete name, and all aliases used by the applicant, including complete residence address and telephone;

2. Date and place of birth, California driver’s license or identification card, or proof of authority to work in the United States;

3. Acceptable written proof that the applicant is at least eighteen years of age;

4. Height, weight, color of hair and eyes, and gender;

5. Two front-faced photographs at least two inches by two inches in size taken within the three-month period immediately preceding the applicant;

6. A complete massage permit history of the applicant; whether such person has ever had any permit or license issued by any agency, board, city, county, or state; the date of issuance of such a permit or license, whether the permit or license was denied, revoked or suspended; or if a vocational or professional license or permit was denied, revoked or suspended;

7. All criminal convictions, including pleas of nolo contendere, within the last five years, but excluding minor traffic violations, and the date and place of each such conviction and reason therefor;

8. A complete set of fingerprints taken by the San Pablo police department;

9. Authorization, via a signed waiver by the applicant, for the city, its agents and employees to seek verification of the information contained in the application;

10. A statement in writing, dated and signed by the applicant, which certifies under penalty of perjury that all information contained in the application is true and correct;

11. The full name, address and telephone number of each massage establishment where the therapist will be employed;

12. Such other information and/or identification as the police department may require in order to reveal the truth of the matters herein specified, and set forth in the application including, but not limited to, the work history for the past five years;

13. A certificate from a medical doctor licensed to practice in the state stating that the applicant has within thirty days immediately preceding the date of application been examined and found to be free of any contagious or communicable disease.

B. If, during the term of a permit, the permit holder has any change in information, the permit holder shall submit changes to the police department in writing within ten business days.

C. Each applicant must furnish with an initial application, a diploma or certificate and certified transcript of graduation for completion of five hundred fifty hours of instruction from a state-approved school of massage. If the applicant cannot supply a diploma or transcript, then the applicant must supply a course description, an outline of material covered, and a letter to the city from the school administrator verifying completion.

D. The chief of police may consider an applicant’s study of massage completed in a different state if proof of completion from a formalized course of study in massage practice, anatomy, and/or physiology is provided with the application. Proof of completion shall include dates of study and the name, address and telephone number of such school attended and located in the United States.

E. All requirements for the approval of a massage therapist permit are subject to and subordinate to state law. If, at any time, state law requires any additional or more rigorous requirements for permitting of a massage therapist, then state law shall apply. (Ord. 06-018 § 1 (part), 2006)

5.36.080 Approval or denial of permits.

A. Massage Establishment Permits. Upon receipt of a written application for a permit, the chief of police or his or her designee shall verify the truthfulness of the application to determine whether such permit should be denied. The chief of police or designee shall, within forty-five days of receipt of a completed application, approve, conditionally approve or deny the application. The forty-five day period may be extended for up to thirty additional days, if necessitated by events beyond control of the chief. The chief of police or designee shall issue such permit as requested, unless he/she makes any of the following findings:

1. The applicant (if an individual), or the officers or directors (if a corporation), or a partner, (if a partnership), or any person directly engaged or employed in the massage establishment, has:

a. Been convicted of a violation of California Penal Code Sections 266(h), 266(i), 314, 315, 316, 318, subsection (a) or (b) of Penal Code Section 647 or any other provision of law pursuant to which a person is required to register under the provisions of Penal Code Section 290, or when the prosecution accepted a plea of guilty or nolo contendere to a charge of a violation of California Penal Code Sections 415, 602 or any lesser included or lesser related offense, in satisfaction of, or as a substitute for, any of the previously listed crimes or applicable violations;

b. Been convicted of a violation of Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution or possession of a controlled substance specified in Health and Safety Code Sections 11054, 11055, 11056, 11057 or 11058 within five years from the date of filing the application;

c. Been convicted of any offense in any other jurisdiction that is equivalent to any of the above-mentioned offenses;

d. Been engaged in conduct in another jurisdiction which, if it occurred within the city, would constitute grounds for denial, suspension or revocation under this chapter;

e. Committed an act in another jurisdiction which, if committed in this state, would have been a violation of law and, which, if done by a permittee under this chapter, would be grounds for denial, suspension or revocation of the permit;

f. Been convicted of an act involving dishonesty, fraud, deceit or moral turpitude or an act of violence, which acts are related to the qualifications, functions or duties of the operator within five years from the date of filing the application.

2. The applicant has made a false, misleading or fraudulent statement or omission of fact to the city in the permit application process, and/or the application does not contain all necessary information required by this chapter.

3. 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.

4. The applicant is lacking the background and qualifications to conduct a bona fide massage establishment.

5. The location of the business does not comply with all applicable zoning laws or the provisions of this chapter.

6. The configuration and/or proposed or actual construction of the premises, as presented in the sketch or plan submitted with the application, reveals a violation of an applicable health, fire, building, safety or zoning regulation or law of the federal government, state of California, county of Contra Costa or ordinance of the city of San Pablo, including those set forth in this chapter.

7. The applicant or the prospective on-site manager, if other than the applicant, did not receive a diploma or a certificate of graduation from a recognized school of massage which verifies that he or she has obtained the requisite number of hours of massage therapy training.

Upon approval by the chief of police, planning division staff will schedule a public hearing for the consideration of a use permit by the planning commission.

B. Massage Therapist Permits. Upon receipt of a written application for a permit, the chief of police or designee shall conduct an investigation in such manner as he or she deems appropriate in order to determine whether such permit should be issued as requested. The chief of police shall approve or deny the application within thirty days of the filing of a completed application. The thirty-day period may be continued for an additional thirty days if necessitated by the occurrence of events beyond the control of the chief of police. The chief shall issue the permit as requested, unless he/she makes any of the following findings:

1. The applicant has been convicted of any of the following:

a. A violation of Penal Code Sections 266(h), 266(i), 314, 315, 316, 318, subsection (a) or (b) of Penal Code Section 647 or that the applicant is required to register under the provisions of Penal Code Section 290, or when the prosecution accepted a plea of guilty or nolo contendere to a charge of a violation of California Penal Code Sections 415, 602 or any lesser included or lesser related offense in satisfaction of, or as a substitute for, any of the previously listed crimes;

b. Any offense in any other state that is the equivalent of any of the above-mentioned offenses.

2. The applicant has committed an act, which, if committed in this state would have been a violation of law and which, if done by a permittee under this chapter, would be grounds for denial, suspension or revocation of the permit.

3. The applicant has knowingly made a false, misleading or fraudulent statement or omission of fact to the city in the permit application process.

4. If the applicant is denied for failure to comply with subsection (B)(3) of this section, the applicant may not reapply for a period of one year from the date the application was denied.

C. Provisional Permits. If the application is not approved or denied within the time periods or extensions as provided herein, the chief of police may, at his or her discretion, issue a provisional permit for a period not to exceed six months, where the applicant is able to show that substantial compliance can be achieved within the period of the provisional permit. This provisional permit cannot be renewed beyond six months from the date of the initial application.

D. Permit Identification Cards. Each massage therapist shall be issued a permit identification card, which shall be clearly displayed on the permit holder’s person during business hours. Each permit holder shall immediately surrender to the chief of police or an authorized representative any permit issued by the city upon the suspension, revocation, or expiration of such permit. (Ord. 06-018 § 1 (part), 2006)

5.36.090 Permit renewal.

Permits for massage establishments and massage therapists shall be renewed on a biennial basis provided the permittee continues to meet the requirements as stated in this chapter. The renewal fee for massage establishments and massage therapists shall be set by resolution of the city council. The permittee shall submit an application for permit renewal, which shall update any information that has changed from the original application.

Applications for renewal of a permit shall be filed with the chief of police or designee at least sixty calendar days before the expiration of the current permit to be renewed. Temporary permits will not be issued for renewals. Any permittee allowing his or her permit to lapse, or which permit expires during a suspension, shall be required to submit a new application and pay the corresponding original application fees. It is not the responsibility of the city to notify the permittee of their impending permit expiration. (Ord. 06-018 § 1 (part), 2006)

5.36.100 Suspension or revocation.

A. The chief of police or designee at his or her discretion may revoke or suspend a massage establishment permit or massage therapist permit if any of the following are found:

1. The permittee does not possess the qualifications for the permit as required by this chapter;

2. The permittee has been convicted of any violation of the provisions of this chapter or any lesser included offense;

3. The permittee has made a material misrepresentation or omission on the permit application or renewal;

4. The permittee has engaged in conduct or operated the massage establishment in a manner which violates any of the provisions of this chapter, any conditions of the permit, or any of the laws which would have been grounds for denial of the permit;

5. A certified statement from the real property owner is received by the city indicating that the permittee is not authorized to operate, run or manage a massage establishment on the subject premises;

6. The actual physical configuration of the premises does not conform with the sketch or diagram submitted with the approved application;

7. It is discovered by the chief of police that information contained in the approved application was false or falsified;

8. It is discovered that the permittee has knowledge that a client has contracted a communicable or sexually transmitted disease from their establishment, either from the permittee, any of permittee’s employees, or any massage therapists working for permittee as independent contractors, through physical contact with the permittee or permittee’s employees during the course of providing massage therapy services pursuant to a valid permit;

9. The permittee, permittee’s employees or any massage therapists working for permittee as an independent contractor refuse to permit representatives of the city to inspect the premises of a massage establishment pursuant to Section 5.36.150 of this chapter;

10. The permittee has violated any of the use permit conditions of approval pursuant to Title 17 of this code.

B. In any proceeding to revoke or suspend a permit as the result of alleged violation of any provision of this section or chapter, it shall not be necessary to prove that the permittee had personal knowledge of the provisions of this chapter. The permittee shall be responsible for the acts and/or omissions of its employees and massage therapists in the course and scope of their employment by the permittee. The standard of proof shall be a preponderance of the evidence.

C. A hearing shall be scheduled upon not less than ten calendar day’s notice to the permittee stating the grounds for proposed revocation or suspension. Notice shall be given by personal service or certified mail to the address shown on the most recent application or renewal.

D. Notice of the decision shall be given in the same manner as for the hearing. The decision may be appealed by the permittee to the city manager in accordance with the provisions of Section 5.36.110 of this chapter.

E. Service shall be deemed complete when personal service is made, when the certified letter is delivered, or when the decision is mailed by first class mail. If the permit is suspended or revoked, the permit shall be null and void and surrendered. (Ord. 06-018 § 1 (part), 2006)

5.36.110 Appeals.

A. The permittee or applicant, not later than ten calendar days after service of notice of revocation, suspension, denial of application or renewal or approval with conditions, may appeal such decision by filing a written statement of such appeal, including the grounds for appeal and the asserted errors in the decision, with the city clerk’s office.

B. The city manager, or his or her designee, shall schedule a hearing, which shall be held within thirty days after the filing of the appeal. Notice of the date, time and place of the hearing shall be mailed, postage prepaid, at least ten days prior thereto, to the applicant at the address given in the appeal, or if none is provided, to the address set forth in the permit application.

C. The city manager, or designee, shall render a written decision and shall determine, after consideration of all evidence presented, whether a permit should be issued, reinstated, suspended, or revoked. The decision of the city manager, or designee, shall be final. If the denial or revocation is sustained, the permittee or applicant shall be ineligible for a permit for one year from the date the denial or revocation becomes final.

D. The following rules shall apply to all appeal hearings:

1. Each party shall have the right to call and examine witnesses, to introduce exhibits, and to cross-examine opposing witnesses who have testified under direct examination.

2. Technical rules relating to evidence and witnesses shall not apply to hearings provided for herein. 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 law that might make admission of such evidence improper over objection in civil actions. Hearsay testimony may be 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 such testimony would be admissible over objection in civil actions. The rules of privilege shall be applicable to the extent that they now, or are hereafter, permitted in civil actions. Irrelevant, collateral, undue, and repetitious testimony shall be excluded. (Ord. 06-018 § 1 (part), 2006)

5.36.120 Massage establishment operating requirements.

Every massage establishment shall comply with all of the following applicable operating requirements:

A. Each person employed or acting as a massage therapist shall have a valid permit issued by the city, and it is unlawful for the owner, operator, responsible managing employee, manager or permittee in charge of, or in control of the establishment, to employ or permit a person to act as a massage therapist, as defined in this chapter, who does not possess a valid massage therapist’s permit. Massage therapists may not use a name other than the name used on the permit application.

B. The owner/operator of a massage establishment shall display an original massage establishment permit, and the original or copy of permit for each and every massage therapist employed in the establishment, in an open and conspicuous place on the premises next to their business tax receipt.

C. No massage establishment may discriminate or exclude patrons on the basis of race, sex, religion, age, or disability.

D. Massage operations shall be carried on between the hours of seven a.m. and ten p.m. No person shall operate a massage establishment between the hours of ten p.m. and seven a.m. The hours of operation must be displayed in a conspicuous public place in the lobby within the massage establishment and in the front window clearly visible from the outside. If an establishment changes the hours of operation, the city must be notified in writing at least ten days prior to the change. Extended operating hours may be granted at the sole discretion of the chief of police.

E. A list of services with applicable prices shall be posted in an open, public place on the premises, and shall be described in readily understood language to minimally include English and Spanish. No owner, operator, responsible managing employee, manager, or permittee shall permit, and no massage therapist shall offer to perform, any services other than those posted.

F. Massage establishments shall at all times be equipped with an adequate supply of clean, sanitary towels, coverings, and linens. Towels and linens shall not be used on more than one patron unless they have first been laundered and disinfected.

G. The massage establishment shall be thoroughly cleaned and disinfected at all times during all hours of operation.

H. The owner or operator of the massage establishment shall keep a complete and current list of the names and residence addresses of all massage therapists and employees of the massage establishment. The operator or manager must keep a roster of all employees for at minimum of two years following an employee’s termination. This roster shall be kept at the premises and be available for inspection by officials charged with enforcement of this chapter.

I. Every person operating a massage establishment and each person doing business as a massage therapist shall keep a legible written record of the date and hour of each treatment or service, the name and address of the patron, the name of the therapist administering such treatment or services and a description of the treatment or service rendered. All client registration files shall be made available for inspection by the police department upon request. The information contained in client registration files shall be maintained by permittee for a period of three calendar years of the last date the respective information was entered into the file.

J. No part of the establishment shall be used for residential or sleeping purposes.

K. Recordings. No electrical, mechanical or artificial device shall be used by the operator, manager or any employee of the 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 and express written consent of the patron.

L. Signaling Devices. No massage establishment shall have installed or utilize, any signaling devices of any type to alert employees and/or customers to the presence of law enforcement personnel or other governmental officials.

M. All exterior doors shall remain unlocked during business hours in accordance with the Uniform Fire Code.

N. If male and female patrons are to be treated simultaneously at the same massage establishment, a separate massage room, separate dressing facilities, and separate toilet and washing facilities shall be provided. “Separate room” is defined as a standard fixed wall enclosure and ceiling with a door for ingress and egress. Partitions, half-walls, decorative screens, or similar temporary dividers do not constitute a separate room.

O. If wet and dry heat rooms, steam and vapor rooms or cabinets, toilet rooms, shower and bath rooms, tanning booths, whirlpool baths and pools are offered, they shall be thoroughly cleaned and disinfected as needed, and at least once each day the premises are open. Bathtubs shall be thoroughly cleaned after each use with a disinfectant. All walls, ceilings, floors, and other equipment must be in good repair and maintained in a clean and sanitary condition.

P. Instruments for performing massage shall not be used on more than one patron unless they have first been properly sterilized.

Q. All employees, including massage therapists, shall be clean, and wear clean, nontransparent outer garments. Said garments shall not expose their genitals, pubic area, buttocks, or chest. Massage therapists shall maintain the permit identification card clearly visible on their person during business hours.

R. No person shall enter, loiter or remain in any part of a massage establishment while possessing, consuming, or using any alcoholic beverage or illegal drugs. The owner, operator, responsible managing employee, manager, or permittee shall not permit any such person to enter or remain upon such premises.

S. No massage establishment shall operate as a massage school, or use the same facility as that of a school of massage.

T. No massage service shall be carried on within any cubicle, room, booth or any area within a massage establishment, which is not immediately accessible to management, safety and/or inspection personnel, during all hours of operation.

U. A massage shall not be given unless the patron’s genitals are fully covered and, in addition, a female patron’s breasts are fully covered. (Ord. 06-018 § 1 (part), 2006)

5.36.130 Massage establishment facilities.

Every massage establishment shall maintain facilities meeting the following requirements:

A. Minimum lighting shall be provided in accordance with Article 220 of the National Electrical Code, and, in addition, at least one artificial light of not less than forty watts shall be provided in each room or enclosure where massage services are performed on patrons;

B. Adequate equipment for disinfecting and sterilizing instruments shall be required on the premises;

C. Hot and cold running water shall be provided at all times;

D. Cabinets with doors shall be required for storing clean linens;

E. Separate dressing, toilet and washbasin facilities shall be provided for male and female patrons;

F. Any and all coverings used on massage tables shall consist of a durable, washable plastic or other waterproof material. (Ord. 06-018 § 1 (part), 2006)

5.36.140 Off-premises massage.

Off-premises massage may be conducted by any massage therapist holding a valid permit, and is subject to the following restrictions:

A. No person under the age of eighteen may receive a massage from a massage therapist conducting off-premises massage unless a parent or guardian is present or provides a signed written consent;

B. Off-premises massage must comply with the operating standards set forth in Section 5.36.120(N) through (R) and (U) of this chapter;

C. No person authorized to perform off-premises massage shall do so at any hotel room or motel room. No person authorized to perform off-premises massage shall do so in any commercial establishment, except within the office of the person receiving the massage. Provided however, that massage may occur as an accessory use in dance and fitness studios if administrative approval from the planning division is obtained pursuant to Section 17.34.070 of this code. For purposes of this section, a hotel room or motel room is not considered an office;

D. Off-premises massage may only be conducted between the hours of seven a.m. and ten p.m. (Ord. 06-018 § 1 (part), 2006)

5.36.150 Massage establishment inspections.

A. As a condition of the massage establishment permit, the owner, operator and/or on duty manager agrees and consents to inspections of the premises by city building, police and code enforcement personnel for the purpose of determining compliance with the provisions of this chapter and other applicable regulations, ordinances and laws. In addition, the owner, operator and/or on-duty manager agrees to an initial inspection of the premises by the city building inspector, police and code enforcement and fire department.

B. The police department and city manager or their authorized representatives, shall have the right to enter the massage establishment during regular business hours for the purpose of making reasonable unscheduled inspections to observe and enforce compliance with applicable regulations, laws, and provisions of this chapter. A warrant shall be obtained whenever required by law.

C. This section shall be applicable to state certificate holders. (Ord. 06-018 § 1 (part), 2006) (Ord. No. 2009-005, § 6, 10-6-09)

5.36.160 Massage establishment permits not assignable.

No massage establishment permit may be sold, transferred or assigned by the permittee, or by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be deemed terminated and void, provided and excepting, however, that if the permittee 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 permit and in each case the permittee shall thereafter be deemed to be the surviving partner. (Ord. 06-018 § 1 (part), 2006)

5.36.170 Change of location or name, separate location.

A. A change of location of any massage establishment must first be approved by the chief of police who must determine, prior to approval, that all ordinances and regulations of the city will be complied with at any proposed new location. A change of location shall require the filing of a new business license and conditional use permit application.

B. No permittee shall operate under any name or conduct any business establishment not specified in the permit.

C. Application for an extension or expansion of a building for the purpose of massage shall require compliance with Section 5.36.130 of this chapter and all applicable building and zoning code provisions.

D. A separate permit shall be required for each location of a massage establishment.

E. This section shall be applicable to state certificate holders. (Ord. 06-018 § 1 (part), 2006) (Ord. No. 2009-005, § 7, 10-6-09)

5.36.180 Applicability of massage establishment and massage therapist regulations on existing businesses.

A. Massage establishment permittees who received their permit prior to the effective date of the ordinance codified in this chapter shall comply with the requirements of this chapter within ninety days after the effective date of the ordinance codified in this chapter and no fee will be required. Failure to comply within this time period will require payment of the applicable fee. Thereafter, each permittee will be required to renew their permit on a biennial basis and pay the applicable renewal fee.

B. Massage therapist permittees with a valid permit received prior to the effective date of the ordinance codified in this chapter shall comply with the requirements of the ordinance codified in this chapter within ninety days after its effective date and no fee will be required. Failure to comply within this time period will require payment of the applicable fee. Thereafter, each permittee will be required to renew their permit on a biennial basis and pay the applicable renewal fee. (Ord. 06-018 § 1 (part), 2006)

5.36.190 Unlawful conduct.

A. It is unlawful for any massage therapist or any other employee to massage the genital area of any patron or the breasts of any female patron or for any business employee on the premises of a massage establishment to allow or permit such massage.

B. It is unlawful for a person serving as a massage therapist or any other employee not to be fully clothed in nontransparent clothing that covers their genitals, pubic area, buttocks, and chest at all times.

C. A massage therapist, operator or any other employee shall not violate the provisions of Section 647(a) or 647(b) of the California Penal Code, or any other state law while providing massage services.

D. A massage therapist, operator, or any other employee, shall not massage, fondle, or otherwise have intentional contact or manipulation of the genitals, or the breasts of a female patron, and such practices shall not be allowed or permitted by the massage establishment permittee.

E. A massage therapist, operator, or any other employee shall not give a massage unless the breasts of female patrons are covered and the genitals of all patrons are covered, and such practices shall not be allowed or permitted by the massage establishment permittee.

F. A massage therapist providing massage services away from licensed or permitted massage premises shall not provide such services unless carrying a valid massage therapist permit upon his/her person.

G. Notwithstanding subsections D and E of this section, the breasts of female patrons may be touched and/or massaged in situations where the patron provides prior written consent from a state-licensed medical practitioner and/or a written consent from the patron him or herself to undergo massage therapy procedures for conditions such as, adjuvant therapy in post-operative breast cancer care, manual lymph drainage therapy, and sub-mammary myoskeletal dysfunction, or other medical condition.

H. Notwithstanding subsections D and E of this section, genitalia of female patrons may be touched and/or massaged in situations where the patron provides prior written consent from a state-licensed medical practitioner to undergo massage therapy procedures for a medical condition.

I. A massage establishment shall not violate any of the conditions of approval attached to its conditional use permit issued under Title 17 of this code. (Ord. 06-018 § 1 (part), 2006)

5.36.200 Advertisement.

Any advertisement, including, but not limited to, print, television, radio or electronic media, for a massage establishment, off-premises massage services, or the business or performance of massage shall include the permit license number of the massage therapist that will be performing or supervising services being advertised. (Ord. 06-018 § 1 (part), 2006)

5.36.210 Violation and penalty.

A. Violation of any provision of this chapter is a misdemeanor unless the city attorney authorizes issuance of an infraction citation or files a complaint charging the offense as an infraction; or the court, upon the prosecutorial recommendation of the city attorney, determines that the offense is an infraction. Revocation of a license or permit or certificate shall not be a defense against prosecution.

B. Any massage establishment operated, conducted, or maintained contrary to the provisions of this chapter shall 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, of the imposition of civil or administrative fines or penalties, in a manner provided by law. Nothing in this chapter shall preclude the city from pursuing other remedies, including, but not limited to, denial or revocation of certificates of occupancy, issuance of stop work orders, imposition of administrative penalties, and injunctive relief. (Ord. 06-018 § 1 (part), 2006)

5.36.220 Fees.

Failure of any person to pay a fee required by this chapter, within thirty days of receipt of the bill, which shall be sent by regular U.S. mail, shall constitute a violation of this chapter and a debt to the city. To enforce that debt, the city manager, or his/her designee, may file a claim with the small claims court, or direct the city attorney to employ other available legal remedies. (Ord. 06-018 § 1 (part), 2006)

5.36.230 Severability.

If any sections, subsections, sentences, clauses, phrases or portions of this chapter are for any reason held invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter. The city council declares that it would have passed this and each section, subsection, phrase or clause of this chapter whether or not any one or more sections, subsections, phrases or clauses may be declared invalid or unconstitutional on their face or as applied. (Ord. 06-018 § 1 (part), 2006)