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HomeMy WebLinkAboutOrdinance 1761 (Massage Regulations)CLERK'S CERTIFICATE I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, and Ex -officio Clerk of the Council of said City, do hereby certify that the foregoing Charter Ordinance No. 1761 entitled: "AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DELETING EXISTING CHAPTER 8.34 OF THE SAN RAFAEL MUNICIPAL CODE AND ENACTING NEW CHAPTER 8.34, TO REGULATE MASSAGE AND/OR BODYWORK OFFICES AND ESTABLISHMENTS, OWNERS AND PRACTITIONERS" is a true and correct copy of an Ordinance of said City and was introduced at a REGULAR meeting of the City Council of the City of San Rafael, held on the 20th day of Februarv, 2001, published as required by City Charter in the MARIN INDEPENDENT JOURNAL, a newspaper published in the City of San Rafael, and passed and adopted as an Ordinance of said City at a REGULAR meeting of the City Council of said City held on the 5th day of March, 2001, by the following vote, to wit: AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None WITNESS my hand and the official seal of the City of San Rafael this 7th day of March, 2001 JE M. LEONCINI, City Clerk ORDINANCE NO. 17 61 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DELETING EXISTING CHAPTER 8.34 OF THE SAN RAFAEL MUNICIPAL CODE AND ENACTING NEW CHAPTER 8.34, TO REGULATE MASSAGE AND/OR BODYWORK OFFICES AND ESTABLISHMENTS, OWNERS AND PRACTITIONERS. WHEREAS, current Chapter 8.34 of the City of San Rafael Municipal Code was enacted to regulate massage establishments and public bathhouses; and WHEREAS, due to staffing shortages, the City has been unable to vigorously enforce the requirements of Chapter 8.34; and WHEREAS, the City is now in a position to step up its enforcement of Chapter 8.34; and WHEREAS, the City Council finds that Chapter 8.34 should be amended so as to update its requirements; and WHEREAS, the City Council finds and determines that licensing standards pertaining to massage and/or bodywork offices and establishments, and home visit and/or outcall massage/ bodywork services are necessary to protect the public health, safety and welfare; and WHEREAS, the City Council finds that the regulations adopted herein are exempt from the requirements of the California Environmental Quality Act under Section 15061(b)(3) of the CEQA Guidelines, which exempts projects that clearly will have no significant adverse environmental impacts. NOW THEREFORE, the City Council does ordain as follows: DIVISION 1: San Rafael Municipal Code Chapter 8.34 is hereby deleted in its entirety, and new Chapter 8.34 is added in its place, to read as follows: REGULATIONS FOR MASSAGE AND/OR BODYWORK OFFICES AND ESTABLISHMENTS, OWNERS, AND PRACTITIONERS. 8.34.010 -- Purpose and Intent. It is the purpose and intent of this chapter to provide for the orderly regulation of offices and establishments providing massage and/or bodywork services and home visit and/or outcall massage/bodywork services in the interests of the public health, safety, and welfare by providing certain minimum building, sanitation, and operation standards for such businesses, and by providing certain minimum qualifications for the owners and operators of such businesses and for massage and/or bodywork practitioners. It is the further intent of this chapter to facilitate the ethical practice of massage and/or bodywork. 8.34.020 Definitions. For the purpose of this chapter, unless the context clearly requires a different meaning, the words, terms, and phrases set forth in this section shall have the meanings given them in this section: A. "Employee" means any and all individuals who work on the premises of a massage and/or bodywork office or establishment, in any capacity. B. "Home visit or outcall massagelbodywork service" means the engaging in or carrying on of massage and/or bodywork for consideration at a location other than a massage and/or bodywork office or establishment which has been permitted pursuant to this chapter. C. "Inspector" means the person or persons designated by the Permit Authority to conduct inspections under this Chapter. D. "Massage and/or bodywork" for purposes of this chapter means the skillful application of touch, including but not limited to, pressure, stroking, kneading, compression on, 2 or movement of the external surfaces of the body by a practitioner to produce increased awareness, relaxation, pain relief, injury rehabilitation, or neuromuscular reeducation. E. "Massage and/or bodywork office or establishment" means any establishment having a fixed place of business, vehicle or vessel, where any person, as defined in subsection (J) of this section, engages in, conducts, carries on, or permits to be engaged in, conducted, or carried on as regular functions any of the activities mentioned in subsection (D) of this section. Any establishment engaging in or carrying on, or permitting any combination of massage and/or bodywork shall be deemed a massage and/or bodywork office or establishment. F. "Massage and/or bodywork practitioner" means any individual who, for any consideration whatsoever, engages in the practice of massage and/or bodywork, whether or not employed on the premises of a massage and/or bodywork office or establishment or acting as an independent contractor or as an Owner as defined in subsection (G) of this section. G. "Owner" means any person or persons, as defined in subsection (J) of this section, who own(s) and/or operate(s) a massage and/or bodywork office or establishment, or home visit or outcall massage/bodywork service. H. "Owner Permit" means the permit required by this chapter to own and/or operate a massage and/or bodywork office or establishment, or a home visit or outcall massage/bodywork I. "Permit Authority" means the Police Chief or his designee charged with the administration of this chapter. J. "Person" means any individual, firm, association, partnership, corporation, joint venture, or combination of individuals. 3 K. "Practitioner Permit" means the permit required by this chapter for a massage and/or bodywork practitioner as defined in subsection (F) of this section. L. "Recognized school of massage and/or bodywork" means any school or institution of learning which teaches the theory, ethics, practice, profession, or work of massage and/or bodywork, which has been approved by the state in which it is located. Any school or institution of learning offering or allowing correspondence course credit not requiring actual attendance at class shall not be deemed a recognized school of massage and/or bodywork. 8.34.030 Massage and/or bodywork office or establishment, home visit or outcall massage/bodywork service — Permit Required. A. It is unlawful for any Owner or any other person as owner or operator, to engage in, conduct, or carry on, or to permit to be engaged in, conducted, or carried on, in or upon any premises in the City, operation of a massage and/or bodywork office or establishment or home visit or outcall massage/bodywork service as defined in this chapter, without a valid Owner Permit issued by the Permit Authority as required by this chapter. A separate Owner Permit shall be required for each such office or establishment or service. B. It is unlawful for any Owner to permit any massage and/or bodywork practitioner to work in, for, or at a massage and/or bodywork office or establishment, or home visit or outcall massage/bodywork service, unless such practitioner holds a valid Practitioner Permit issued by the Permit Authority as required by this chapter. C. It is unlawful for any massage and/or bodywork practitioner to work in, for, or at any massage and/or bodywork office or establishment or home visit or outcall massage/bodywork service within the city which does not hold a current Owner Permit issued by the Permit Authority as required by this chapter. 4 D. It is unlawful for any massage and/or bodywork practitioner to work in, for, or at a massage and/or bodywork office or establishment or home visit or outcall massage/bodywork service, or to perform massage and/or bodywork services for compensation within the city, unless such practitioner holds a valid Practitioner Permit issued by the Permit Authority as required by this chapter. Provided however, that where a massage and/or bodywork practitioner is also an Owner, the practitioner shall obtain an Owner Permit rather than a Practitioner Permit. E. An Owner or Practitioner Permit issued pursuant to the terms of this chapter shall be valid for a term of one year from the date of issuance. A permit that has not been suspended or revoked may be renewed for another one year period, on submittal of a written application and payment of a renewal fee to be established by resolution of the city council. An application for renewal shall be filed at least thirty (30) days but not more than sixty (60) days prior to the expiration date of the current valid permit. Except as specifically provided otherwise in this chapter, an application for renewal shall be in the same form, and shall be subject to the same requirements, as an initial permit application. 8.34.040 Practitioner Permit - Education Requirements. A. No Practitioner Permit shall be issued unless the applicant has completed one hundred (100) hours of instruction in massage and/or bodywork from either 1) a recognized school of massage and/or bodywork; or 2) State approved colleges and universities. B. For renewal of any Practitioner Permit, in addition to the requirements in subsection (A) of this section the applicant shall have completed six (6) or more hours of continuing education in massage and/or bodywork and related topics during the previous twelve months. 5 8.34.050 Owner Permit and Practitioner Permit - Application Fees. Any application for an Owner Permit or Practitioner Permit under this chapter shall be accompanied by a nonrefundable fee in an amount established by resolution of the City Council. The application fees shall be used to defray the costs of processing the application, including but not limited to investigations and inspections, and are not made in lieu of any other fees or taxes required under this code. 8.34.060 Permit - Application. A. Practitioner Permit - Requirements. Every application for a Practitioner Permit under this chapter shall contain the following information: 1. Name, residence, address, and telephone number of applicant. 2. California driver's license, if any, or other photographic identification issued by a state or federal agency establishing the applicant's age as 18 or older. The Permit Authority may require fingerprints if the documentary identification submitted fails to clearly establish the identity of the applicant. 3. The previous residence addresses of the applicant, if any, for a period of five years immediately prior to the date of application, and the dates of residence at each. such name. 4. All other names previously used by applicant and the dates of use of each 5. The applicant's weight, height, color of hair and eyes. 6. Two two-inch by two-inch prints of a recent portrait photograph. 7. Whether any license or permit has ever been issued to the applicant by any jurisdiction under the provisions of any ordinance or statute governing massage or somatic practice, and as to any such license or permit, the name and address of the issuing authority, the 6 effective dates of such license or permit, whether such license or permit was ever suspended, revoked, withdrawn or denied; and copies of any documentary materials relating to such suspension, revocation, withdrawal or denial. 8. Whether the applicant has within the five years immediately preceding the date of application been convicted in any state of any felony. 9. Whether the applicant is currently required to register under the provisions of Section 290 of the California Penal Code. 10. Whether the applicant, including any person as defined in subsection (J) of Section 8.34.020, or a former employer of the applicant while so employed or a building in which the applicant was so employed or a business conducted, was ever subjected to an abatement proceeding under Sections 11225 through 11235 of the California Penal Code or any similar provisions of law in a jurisdiction outside the state of California. 11. Information detailing how the applicant has satisfied the education requirements set forth in Section 8.34.040. B. Owner Permit -- Requirements. The application for an Owner Permit shall provide all the information required under subsection (A) of this section as to any massage and/or bodywork practitioner owner or employee, and shall also state the following: 1. The exact nature of the proposed place of business and facilities therefore, and for massage and/or bodywork offices or establishments, the type of treatments to be administered. 2. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation, together with the names and residence addresses of each of its officers, directors, and each stockholder holding more than ten percent of 7 the stock of the corporation. The application shall include the information required by subsection (A) of this section for each of said individuals. 3. If the applicant is a partnership, the application shall set forth the name and residence address of each of the partners, including limited partners. The application shall include the information required by subsection (A) of this section for each of said individuals. If one or more of the partners is a corporation, the provisions of this section pertaining to a corporate applicant shall apply. C. Any application for renewal of an Owner Permit or a Practitioner Permit shall contain all the information set forth in subsections (A) and (B) of this section, however, such information shall only be required as to the period of time between the date of the prior application and the date of the renewal application. 8.34.070 Permit - Criteria for granting and denying. A. The Permit Authority may deny an Owner Permit or a Practitioner Permit when it is determined that: 1. The applicant, within five years immediately preceding the date of filing of the application, has been convicted in a court of competent jurisdiction of any offense which relates directly to the operation of a massage and/or bodywork office or establishment or home visit and/or outcall massage/bodywork service whether as a massage and/or bodywork office or establishment or home visit and/or outcall massage/bodywork service owner or operator or as a massage and/or bodywork practitioner, or as an employee of either; or has at any time been convicted in a court of competent jurisdiction of any felony the commission of which occurred on the premises of a massage and/or bodywork office or establishment; or 9 2. The applicant, within five years of the date of application, has been convicted in a court of competent jurisdiction of any felony offense involving the sale of a controlled substance specified in Sections 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code. 3. The applicant, within five years of the date of application, has been convicted in a court of competent jurisdiction of any offense involving the use of a controlled substance, other than marijuana, specified in Sections 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code. 4. The applicant is currently required to register under the provisions of Section 290 of the California Penal Code. 5. The applicant, within five years of the date of application, has been convicted in a court of competent jurisdiction of any violation of Section 266, 266h, 266i, 315, 316, 318, or 647(b) of the California Penal Code, or conspiracy or attempt to commit any such offense, or any offense in a jurisdiction outside of the state of California which is the equivalent of any of the aforesaid offenses. 6. The applicant has been subjected to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Section 11225 through 11235 of the California Penal Code, or any similar provision of law in a jurisdiction outside the state of California. 7. The applicant has knowingly made a false statement or omission of a material fact in the application for the permit. 8. The applicant, if an individual, has not attained the age of eighteen years. 9 9. The applicant, within five years of the date of application, and as established by clear and convincing evidence, has engaged in acts prohibited under California Penal Code Sections 266h, 2661, 647(b) or 653.22. 10. The applicant has not met the educational requirements set forth in this chapter. B. The Permit Authority shall grant an Owner or Practitioner Permit to an applicant who has satisfied the requirements of Sections 8.34.040, 8.24.050, 8.34.060, and 8.34.090, as qualified by Section 8.34.100, the home use exception, unless the applicant is disqualified pursuant to subsection (A) of this section or unless the massage and/or bodywork office or establishment, as proposed by the permit applicant, would not comply with all other applicable laws, including, but not limited to, the city's building, zoning, and health regulations. 8.34.080 Massage and/or bodywork office or establishment application - Inspection. A. Within thirty days after an applicant for an Owner Permit for a massage and/or bodywork office or establishment has filed a completed application, the Inspector shall inspect the proposed place of business to determine whether it is sanitary and otherwise conforms to the requirements of Section 8.34.090 as qualified by Section 8.34.100. Upon completion of the inspection, the Inspector shall, within five days, inform the Permit Authority in writing of its findings of the inspection. B. Where, due to circumstances beyond the applicant's control, the Inspector is unable to perform the required inspection within the time set forth in this section, an applicant who has met all other applicable requirements to obtain an Owner Permit may receive a conditional permit to operate pending inspection and approval of the premises by the Inspector. A conditional permit shall be valid for no more than 60 days, but may be extended at the discretion of the Permit 10 Authority. An Owner Permit issued after such approval shall be valid only until the date that is one year from the issuance of the conditional permit. 8.34.090 Massage and/or bodywork office or establishment facilities and operations - Requirements. Except as provided in Section 8.34.100, all massage and/or bodywork offices or establishments shall comply with the following facilities and operations requirements: A. A minimum of one toilet and washbasin shall be provided for every massage and/or bodywork office or establishment. B. Cabinets or other covered space shall be provided for the storage of clean linen. Clean, covered and lined receptacles shall be provided for the storage of all soiled linen and paper towels. C. All lavatories or washbasins shall be provided with running water, soap, and single - service towels. D. Every portion of a massage and/or bodywork office or establishment, including appliances and apparatus, shall be kept in good repair, and all such premises, appliances and apparatus, and all personnel thereon and their clothing, shall be maintained in a clean and sanitary condition at all times. E. All massage and/or bodywork offices or establishments shall be provided with clean and sanitary towels, sheets, and linens in sufficient quantity. Towels, sheets, and linens shall not be used by more than one person; reuse is prohibited unless the same has first been laundered. Heavy white paper may be substituted for sheets, provided that such paper is used once for each person and then discarded into a sanitary receptacle. 11 F. Disinfecting agents and sterilizing equipment shall be provided for any instruments used in performing acts of massage and/or bodywork and said instruments shall be disinfected and sterilized after each use. G. Pads used on massage tables shall be cleaned or covered with a clean covering after each use. H. No massage and/or bodywork office or establishment Owner or employee, or massage and/or bodywork practitioner shall, while on the premises of a massage and/or bodywork office or establishment and in the presence of any patron or customer, expose his or her genitals, buttocks, or chest. No person shall, in the course of administering any massage, somatic procedure, or health treatment, intentionally make physical contact with the genitals or anus of any other person. I. As qualified by Section 8.34.100, no massage and/or bodywork office or establishment shall be used for residential or sleeping purposes. J. No alcoholic beverages shall be sold, served, or furnished to any customer, nor, except as qualified by Section 8.34.100, shall any alcoholic beverages be kept, or possessed on the premises of a massage and/or bodywork office or establishment. K. No massage and/or bodywork office or establishment shall be kept open for business and no Owner or massage and/or bodywork practitioner shall provide any home visit or outcall massagelbodywork service or administer any massages and/or bodywork or other treatment, between the hours of eleven o'clock p.m. of one day and five o'clock a.m. of the following day. 8.34.100 Home occupation exception. An exception to the requirements of Section 8.34.090 (I), and that part of section 8.34.090(J) which prohibits keeping or possessing alcoholic beverages on the premises of a 12 massage and/or bodywork office or establishment, shall be permitted where a massage and/or bodywork office or establishment is in the applicant's residence, and the applicant has complied with the provisions of Section 14.16.220 of this Code pertaining to home occupations. When a home occupation exception is granted under this section, the portions of the home or residence subject to the requirements of Section 8.34.090 shall be only those portions that are used at any time by the patron or customer. 8.34.110 Inspection for compliance. The Inspector shall have the right to enter any massage and/or bodywork office or establishment during regular business hours to make reasonable inspection to ascertain whether the provisions of this chapter are being complied with, and the permittee shall allow such reasonable inspections. A warrant shall be obtained whenever required by law. 8.34.120 Business name. No person permitted to operate a massage and/or bodywork office or establishment or home visit or outcall massage/bodywork service shall operate under any name or conduct business under any designation not specified in the Owner Permit and business license. 8.34.130 Business location change. Upon a change of location of a massage and/or bodywork office or establishment, an application shall be made to the Permit Authority, and such application shall be granted, provided all applicable provisions of this code are complied with as to the new location, and a change of location fee in an amount established by resolution of the city council to defray, in part, the costs of investigation and report, has been paid to the City. 13 8.34.140 Sale or transfer of massage and/or bodywork office or establishment or home visit and/or outcall massagelbodywork service interest. Upon a sale or transfer of any interest in a massage and/or bodywork office or establishment or home visit and/or outcall massage/bodywork service, a new Owner Permit shall be obtained. 8.34.150 Display of permits. Each holder of an Owner Permit or Practitioner Permit shall display that permit in an open and conspicuous place on the premises of the massage and/or bodywork office or establishment, or where the massage and/or bodywork services are being provided. A passport -size photographs of the permittee shall be affixed to each Practitioner Permit on display pursuant to this section. The home address of any permittee need not be displayed. 8.34.160 Grounds for revocation or suspension of permit. Any permit issued pursuant to this chapter may be suspended or revoked by the Permit Authority after a hearing, where it is found by clear and convincing evidence that: A. The permittee or any employee has violated any provision of this chapter. B. The permittee or any employee has been convicted in a court of competent jurisdiction of having violated, or has engaged in conduct constituting a violation of, any of the following: California Penal Code sections 266, 266h, 2661, 315, 316, 318, 647(b) or 653.22, or conspiracy or attempt to commit any such offense, or any offense in a jurisdiction outside of the state of California which is the equivalent of any of the aforesaid offenses. C. The permittee is required to register under Section 290 of the California Penal Code. D. The permittee has been subject to a permanent injunction against the conducting or maintaining of a nuisance pursuant to Section 11225 through 11235 of the California Penal Code, or any similar provision of law in any jurisdiction outside the state of California. 14 E. The permittee has engaged in fraud or misrepresentation or has knowingly made a misstatement of material fact while working in or for a massage and/or bodywork office or establishment or while engaging in any aspect of providing home visit and/or outcall massage/bodywork services. F. The permittee has continued to operate the massage and/or bodywork office or establishment after the permit has been suspended. G. The permittee has knowingly allowed a person to work as a massage and/or bodywork office or establishment or home visit and/or outcall massage/bodywork service employee or massage and/or bodywork practitioner who has engaged in conduct or has been convicted or conduct described in subsection (B) of this section. H. There have been repeated acts of prostitution, as defined in Penal Code sections 266, 266h, 2661, 315, 316, 318, 647(b) or 653.22, taking place on the premises of any massage and/or bodywork office or establishment, in which case the Owner Permit may be suspended or revoked. 8.34.170 Hearing by Permit Authority for revocation or suspension. A. The Permit Authority, before revoking or suspending any permit shall give the permittee at least ten days' written notice of the alleged grounds for revocation or suspension and shall conduct a hearing in the matter of whether the permit shall be revoked or suspended. The hearing shall be conducted at least ten days from the date of written notice. B. The Permit Authority shall consider all evidence at the hearing. The hearing may, after being commenced within the time specified pursuant to subsection (A) of this section, be continued for good cause by the Permit Authority from time to time. The Permit Authority shall, at the conclusion of the hearing, make findings of fact based upon the evidence submitted and shall 15 decide whether or not the permit shall be revoked or suspended. Notice of the Permit Authority's decision shall be given to the permittee within thirty days of the conclusion of the hearing. 8.34.180 Right of appeal. Any person aggrieved by the action of the Permit Authority or other officials of the City, acting under this chapter, may appeal such decision to the city manager pursuant to this code. Upon not less than ten days notice to the appellant, the city manager shall conduct a de novo hearing in the matter of whether the permit shall be revoked or suspended. The city manager shall consider all evidence at the hearing. The hearing may be continued for good cause by the city manager from time to time. The city manager shall, at the conclusion of the hearing, make findings of fact based upon the evidence submitted and shall decide whether or not the permit shall be revoked or suspended. Notice of the city manager's decision shall be given to the permittee within thirty days of the conclusion of the hearing. The decision of the city manager shall be final. 8.34.190 Exemptions. 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, physical therapists, nurses, or to any other person licensed to practice any healing art under the provisions of Division 2 (commencing with Section 500) of the Business and Professions Code when engaging in such practice within the scope of his or her license. B. Trainers of any amateur, semiprofessional, or professional athlete or athletic team. C. Barbers, estheticians and cosmetologists who are duly licensed under the laws of the state of California, while engaging in practices within the scope of their licenses. D. Individuals in the city temporarily for educational events or disaster relief. To E. Individuals administering massages or health treatments involving massage to persons participating in road races, track meets, triathlons, educational events, conferences or similar single -occurrence athletic, recreational or educational events. F. Somatic practitioners who use no physical touch of any kind at any time in their practice. 8.34.200 Violation and penalties. Any violation of this chapter may be enforced by any remedy available to the City under this Code, or under State law. DIVISION 2: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. DIVISION 3: This Ordinance shall be published once in full before its final passage in a newspaper of general circulation, published, and circulated in the City of San Rafael, and shall be in full force and effect thirty (30) days after its final passage. ATTEST: WSANNE M. LEO CR , City Clerk 17 �eB, i BV, yor The foregoing Ordinance No. 17 61 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael, held on the 201h day of February, 2001 and ordered passed to print by the following vote, to wit: AYES: Councilmembers: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: Councilmembers: None ABSENT: Councilmembers: None and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 5th day of MARCH , 2001. JE i M. LEON IlVI, City Clerk