HomeMy WebLinkAboutOrdinance 1890 (Massage Establishments)CLERK'S CERTIFICATE
I, ESTHER C. BEIRNE, 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. 1890 entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SAN RAFAEL DELETING SAN RAFAEL MUNICIPAL CODE
CHAPTER 8.34 AND ADDING NEW CHAPTER 10.90 TO THE
SAN RAFAEL MUNICIPAL CODE RELATING TO MASSAGE
THERAPY PRACTITIONERS AND ESTABLISHMENTS
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 1st day of November, 2010, a
SUMMARY of Ordinance No. 1890 was 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 15th day of November, 2010, by the following vote, to wit:
AYES COUNCILMEMBERS: Brockbank, Heller, Levine & Vice -Mayor Connolly
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: Mayor Boro
WITNESS my hand and the official
seal of the City of San Rafael this
17th day of November, 2010
ESTHER C. BEIRNE
City Clerk
ORDINANCE NO. 1890
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SAN RAFAEL DELETING SAN RAFAEL MUNICIPAL CODE
CHAPTER 8.34 AND ADDING NEW CHAPTER 10.90 TO THE
SAN RAFAEL MUNICIPAL CODE RELATING TO MASSAGE
THERAPY PRACTITIONERS AND ESTABLISHMENTS
WHEREAS, there is substantial research that indicates that the skillful practice of
massage can provide many health benefits including relief of pain from disease, injury and other
sources, and that massage can be a valuable component of a wellness program; and
WHEREAS, in 2008 by Senate Bill 731 ("SB 731"), the Legislature added new Chapter
10.5 (Sections 4600 et seq.) to the California Business and Professions Code, entitled "Massage
Therapists," which provides for the formation of a nonprofit "Massage Therapy Organization" to
oversee a state -sanctioned program of certification for massage therapy practitioners; and
WHEREAS, the new state law establishes a scheme for a voluntary certification process
for persons wishing to practice massage therapy in California, with the intention of enabling
persons so certified to practice massage therapy in any city within the State without being
required to obtain a local permit to practice; and
WHEREAS, state law now provides that it shall be an unfair business practice for any
person to hold him- or herself out as certified or licensed by any governmental agency as a
massage therapist or massage practitioner, or as being a "certified massage therapist" or
"certified massage practitioner," unless that person has obtained a certification from the Massage
Therapy Organization; thus the new laws will assist the public in locating qualified massage
therapists and practitioners; and
WHEREAS, a Massage Therapy Organization has been formed and designated the
"California Massage Therapy Council;" and
WHEREAS, the California Massage Therapy Council has begun to issue certifications
pursuant to the new laws; and
WHEREAS, by San Rafael Municipal Code Chapter 8.34, the City has for many years
regulated the practice of massage in the City in the interests of the public health, safety, and
welfare, through the issuance of City practitioner permits and business owner permits, with a
primary goal of diminishing the ability of persons to provide or engage in unlawful acts of
prostitution and pandering in San Rafael under the guise of a legitimate massage therapy
practice; and
WHEREAS, it is the intention of the City Council by this Ordinance to reduce City
involvement in local massage therapy licensing, while still encouraging and facilitating the
ethical practice of massage therapy and complying with State law, by relying upon the uniform
statewide regulations enacted by SB 731, and by restricting the commercial practice of massage
C. "Certified Massage Practitioner" means any individual certified by the California
Massage Therapy Council as a Certified Massage Practitioner or as a Certified Massage
Therapist pursuant to California Business and Professions Code sections 4600 et seq.
D. "Compensation" means the payment, loan, advance, donation, contribution,
deposit, exchange, or gift of money or anything of value.
E. "Inspector" means the person or persons designated by the Permit Authority to
conduct any inspections required or permitted under this chapter.
F. "Massage," "massage therapy," and/or "bodywork" for purposes of this chapter
are used interchangeably and shall mean the skillful application of touch, including but not
limited to, pressure, stroking, kneading, compression on or movement of the external surfaces of
the body by a practitioner to produce increased awareness, relaxation, pain relief, injury
rehabilitation, or neuromuscular reeducation.
G. "Massage establishment" shall include the term "massage and/or bodywork office
or establishment", and means any business or establishment that offers massage therapy in
exchange for compensation, whether at a fixed place of business or at a location designated by
the patron. Any business or establishment that offers any combination of massage therapy and
bath facilities -- including, but not limited to, showers, baths, wet and dry heat rooms, pools and
hot tubs -- shall be deemed a massage establishment under this chapter.
H. "Massage establishment owner" or "owner of a massage establishment" shall
mean and include any of the following persons:
1. The sole proprietor of a sole proprietorship operating a massage
establishment.
2. Any general partner of a general or limited partnership that owns a
massage establishment.
3. Any person who has a ten (10) percent or greater ownership interest in a
corporation that owns a massage establishment.
4. Any person who is a member of a limited liability company that owns a
massage establishment.
5. All owners of any other type of business association that owns a massage
establishment.
I. "Operator Permit" means the permit required by this chapter to operate a massage
establishment.
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B. Upon registration, the Permit Authority shall issue the registrant a City
Registration Certificate, valid for one year. Upon application by the registrant, the City
Registration Certificate shall be renewed annually so long as the Certified Massage Practitioner
is practicing massage therapy for compensation within the City.
C. The Certified Massage Practitioner shall apply to the City to amend the City
Registration Certificate within thirty (30) days after any change in the registration information,
including, but not limited to, a change in work address.
10.90.050 Operation of Massae Establishments—Certified Massage Establishment
Certificate or Operator Permit Required.
A. On and after March 1, 2011, it shall be unlawful for any person or persons to
operate a massage establishment within the City without first obtaining a Certified Massage
Establishment Certificate or an Operator Permit pursuant to the requirements of this Chapter.
B. On and after March 1, 2011, it shall be unlawful for any massage establishment
operator within the City to employ or retain any person to practice massage therapy for
compensation, or to allow any person to perform massage for compensation on the premises of a
massage establishment, unless that person is a Certified Massage Practitioner. For purposes of
this chapter, a massage establishment operator "employs or retains" a person to practice massage
therapy for compensation when:
That person is a directly paid employee of the massage establishment; or
2. That person's association with a massage establishment is that of an
independent contractor who receives compensation for massage therapy provided to patrons of
the massage establishment; or
3. That person receives a referral of patrons from the massage establishment
and, at any time before or after the referral, arranges in any way for compensation to flow to the
massage establishment operator (regardless of whether the parties involved acknowledge that
compensation is flowing in exchange for the referral, or whether such parties record such
compensation in their financial records).
10.90.060 Operation of Certified Massaze Establishment --Certificate Reauired.
On and after March 1, 2011, no Certified Massage Establishment shall operate within the
City without first obtaining a Certified Massage Establishment Certificate under this section.
A. Application for Certified Massage Establishment Certificate. All owners of the
certified massage establishment, or their duly authorized agent, shall file an application for a
Certified Massage Establishment Certificate for the massage establishment, on a form provided
by the Permit Authority. For purposes of this section, the "applicant" for the Certified Massage
Establishment Certificate shall refer to and include each and every owner of the massage
establishment. The application shall include the following information:
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C. Massage Establishment Facilities and Operations—Requirements for Certified
Massage Establishment. A Certified Massage Establishment shall comply with the requirements
of Section 10.90.090, with the following exceptions:
1. Sole Proprietorship. The provisions of Sections 10.90.090(A)(2) and
10.90.090(B)(1-3) shall not apply to a Certified Massage Establishment which is a sole
proprietorship, even if that sole proprietorship is located in a suite of offices with other
businesses.
2. Home Occupation. Where a Certified Massage Establishment is a home
occupation, as defined in Section 14.03.030 of this Code, and the operator has complied with the
provisions of Section 14.16.220 of this code pertaining to home occupations, the provisions of
Sections 10.90.090(A)(2) and 10.90.090(B)(1-3) and (13)(5) shall not apply, and the portions of
the residence subject to the requirements of Section 10.90.090(B) and (C) shall be only those
portions that are used at any time by the patron of the massage establishment.
D. Certified Massage Establishment Certificate---- Issuance— Notice to Propertv
Owner.
1. The Permit Authority shall grant a Certified Massage Establishment
Certificate to an applicant who has satisfied the requirements of this section and all other
applicable laws, including, but not limited to, the City's building, zoning, and health regulations.
2. Where the applicant is not the record owner, as shown on the latest County
assessment roll, of the property upon, in, or from which the Certified Massage Establishment is
to be operated, then upon issuance of a Certified Massage Establishment Certificate, the Permit
Authority may send a written notice to the property owner advising of the issuance of the
Certificate and of the regulations applicable to the massage establishment and the property
pursuant to this Chapter. Any other notices sent to the applicant pursuant to this Chapter at any
time before or after issuance of the Certified Massage Establishment Certificate may also be sent
to the property owner.
E. Notice of Denial -Appeal. If an application for a Certified Massage
Establishment Certificate is denied, the Permit Authority shall serve on the applicant, in the
manner provided in Section 1.08.060 of this code, a written notice of denial which shall specify
the grounds for the denial and shall indicate the appeal procedures as set forth in Section
10.90.130(D) of this code.
F. Displav of Certificate. Each holder of a Certified Massage Establishment
Certificate shall display that Certificate in an open and conspicuous place on the premises visible
from the entrance and/or reception and waiting area of the massage establishment.
G. Term. A Certified Massage Establishment Certificate issued pursuant to the terms
of this chapter shall be valid for a term of one year from the date of issuance, and, unless
suspended or revoked, shall be renewed annually so long as the massage establishment is
operating within the City.
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3. The form of business under which the applicant will be conducting the
massage establishment, i.e., corporation, general or limited partnership, limited liability
company, or other form. 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 shareholder holding more than ten percent
(10%) of the stock of the corporation. If the applicant is a general or limited partnership, the
application shall set forth the name and residence address of each of the partners, including
limited partners. If one or more of the partners is a corporation, the provisions of this section
pertaining to a corporate applicant shall apply. If the applicant is a limited liability company, the
application shall set forth the name and residence address of each of the members. If one or
more of the members is a partnership, limited liability company, or corporation, the provisions of
this section pertaining to a partnership, limited liability company, or corporate applicant shall
apply, as applicable.
4. The name and address of the owner of the real property upon, in, or from
which the massage establishment is to be operated. In the event the applicant is not the legal
owner of the property, the application shall be accompanied by a copy of any written lease
between the applicant and the property owner authorizing use of the premises for a massage
establishment, or, alternatively, if there is no written lease, then a written, notarized
acknowledgment from the property owner 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
property.
5. A description of the proposed massage establishment, including the type
of treatments to be administered.
6. The name, residence address and telephone number, and work address and
telephone number of each person that the massage establishment employs or retains to perform
massage therapy for compensation.
7. For each person that the massage establishment employs or retains to
perform massage therapy for compensation, a copy of that person's current certification from the
California Massage Therapy Council as a Certified Massage Practitioner or as a Certified
Massage Therapist, and a copy of that person's California Massage Therapy Council issued
identification card.
8. 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
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.
9. Whether the applicant has within the five (5) years immediately preceding
the date of application been convicted in any state of any felony.
4. The applicant, or any shareholder, partner, or member of 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; or
5. The applicant, or any shareholder, partner, or member of the applicant, has
knowingly made a false statement or omission of a material fact in the application for the permit;
or
6. The applicant, if an individual, has not attained the age of eighteen (18)
years; or
7. The applicant, or any shareholder, partner, or member of the applicant,
within five (5) years of the date of application, and as established by clear and convincing
evidence, has engaged in acts prohibited under California Penal Code Sections 266, 266a, 266e,
266f, 266g, 266h, 2661, 266j, 315, 316, 318, 647(b), or 653.22; or
8. The applicant, or any shareholder, partner, or member of the applicant,
within five (5) years immediately preceding the date of filing of the application, has had a permit
or license to practice massage for compensation or to own and/or operate a massage
establishment revoked or denied in any jurisdiction.
D. Notice to Property Owner. Where the applicant is not the record owner, as shown
on the latest County assessment roll, of the property upon, in, or from which the massage
establishment is to be operated, then upon issuance of an Operator Permit, the Permit Authority
may send a written notice to the property owner advising of the issuance of the Permit and of the
regulations applicable to the massage establishment and the property pursuant to this Chapter.
Any other notices sent to the applicant pursuant to this Chapter at any time before or after
issuance of the Operator Permit may also be sent to the property owner.
E. Notice of DenialAppeal. If an Operator Permit is denied, the Permit Authority
shall serve on the applicant, in the manner provided in Section 1.08.060 of this code, a written
notice of denial that shall specify the grounds for the denial and shall indicate the appeal
procedures as set forth in Section 10.90.130(D) of this code.
F. DisWav of Permit. Each holder of an Operator Permit shall display that permit in
an open and conspicuous place on the premises visible from the entrance and/or reception and
waiting area of the massage establishment.
G. Term, An Operator 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 expired and 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 application fee to be established by resolution of
the City Council.
reception area and in any front window clearly visible from outside of the massage
establishment.
2. Patrons and visitors shall be permitted in the massage establishment only
during the hours of operation.
3. Except for a patron who is inside a massage therapy room for the purpose
of receiving a massage, no patrons or visitors shall be permitted in or on the massage
establishment premises at any time who are less than fully clothed in outer garments of
nontransparent material, or who display or expose themselves in underclothing or similar
intimate apparel.
4. During the hours of operation, visitors shall not be permitted in massage
therapy rooms except as follows: a) the parents or guardian of a patron who is a minor child may
be present in the massage therapy room with that minor child; b) the minor child of a patron may
be present in the massage therapy room with the patron when necessary for the supervision of the
child; and c) the conservator, aid, or other caretaker of a patron who is elderly or disabled may be
present in the massage therapy room with that elderly or disabled person.
5. During the hours of operation, patrons shall be permitted in massage
therapy rooms only if at least one duly authorized Certified Massage Practitioner is present on
the premises of the massage establishment.
6. A list of services available and the cost of such services shall be posted in
an open and conspicuous public place on the premises, or provided to patrons before services are
rendered. The services shall be described in English and may also be described in such other
languages as may be convenient. No massage establishment operator shall permit, and no person
employed or retained by the massage establishment shall offer to perform, any services or fees
other than those posted.
B. Phvsical Facilitv and Building and Fire Code Reauirements. Except as otherwise
specifically provided in this Chapter, on and after March 1, 2011, the following physical facility
and building code requirements shall be applicable to all massage establishments located within
the City:
1. Front Door and Reception/Waiting Area Required. One front door shall
be provided for patron entry to the massage establishment, which shall open to an interior patron
reception and waiting area immediately inside the front door. All patrons and any persons other
than individuals employed or retained by the massage establishment shall be required to enter
and exit through the front door of the establishment.
2. No massage establishment located in a building or structure with exterior
windows fronting a public street, highway, walkway, or parking area shall block visibility into
the interior reception and waiting area through the use of curtains, closed blinds, tints, or any
other material that obstructs, blurs, or unreasonably darkens the view into the premises.
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patron, it shall be removed from the container in such a way as not to contaminate the remaining
portion.
4. No invasive procedures shall be performed on any patron. Invasive
procedures include, but are not limited to: (a) application of electricity that contracts the muscle;
(b) penetration of the skin by metal needles; (c) abrasion of the skin below the nonliving,
epidermal layers; (d) removal of skin by means of any razor-edged instrument or other device or
tool; and (e) use of any needle-like instrument for the purpose of extracting skin blemishes; and
(f) other similar procedures.
5. All bathrobes, bathing suits, and/or other garments that are provided for
the use of patrons shall be either fully disposable and not used by more than one patron, or shall
be laundered after each use pursuant to subsection 1 of this section.
6. All combs, brushes, and/or other personal items of grooming or hygiene
that are provided for the use of patrons shall be either fully disposable and not used by more than
one patron, or shall be frilly disinfected after each use.
7. No patrons shall be allowed to use any shower facilities of the massage
establishment unless such patrons are wearing slip -resistant sandals or flip-flops while in the
shower compartment. All footwear such as sandals or flip-flops that are provided for the use of
patrons either shall be fully disposable and not used by more than one patron, or shall be fully
disinfected after each use.
8. The patron's genitals, pubic area, anus, and areola must be fully draped at
all times while any individual employed or retained by the massage establishment to practice
massage for compensation, or any other employee or operator of the massage establishment, is in
the massage therapy room or cubicle with the patron. No massage therapy shall be provided to a
patron that results in intentional contact, or occasional and repetitive contact, with the genitals,
pubic area, anus, or areola of a patron.
9. No alcoholic beverages shall be sold, served, or furnished to any patron;
nor shall any alcoholic beverages be kept or possessed on the premises of a massage
establishment.
D. Attire and physical hygiene requirements. On and after March 1, 2011, the
following attire and physical hygiene requirements shall be applicable to all employees, and any
other persons who work permanently or temporarily on the premises, of a massage establishment
within the City, including, but not limited to, all persons who are employed or retained to
practice massage or bodywork for the massage establishment:
1. All persons shall wear clean and sanitary outer garments at all times. All
outer garments shall be of a fully opaque, nontransparent material and provide complete covering
from at least the mid-thigh to two inches below the collarbone. The midriff may not be exposed.
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B. Any owner of a massage establishment which is operating pursuant to a Certified
Massage Establishment Certificate is no longer qualified as a Certified Massage Practitioner for
any reason; or
C. The permittee/certificate holder or any person employed or retained by the
massage establishment 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, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 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 that is the equivalent of any of the aforesaid offenses; or
D. The permittee/certificate holder or any person employed or retained by the
massage establishment is required to register under Section 290 of the California Penal Code; or
E. The permittee/certificate holder has been subject to a permanent injunction
against the conducting or maintaining of a nuisance pursuant to this code, or Section 11225
through 11235 of the California Penal Code, or any similar provision of law in any jurisdiction
outside the state of California; or
F. The permittee/certificate holder or any employee of the massage establishment
has engaged in fraud or misrepresentation or has knowingly made a misstatement of material fact
while working in or for the massage establishment; or
G. The permittee/certificate holder has continued to operate the massage
establishment after the Operator Permit or Certified Massage Establishment Certificate has been
suspended;or
H. Massage treatments are or have been performed on the premises of the massage
establishment, with or without the permittee's/certificate holder's actual knowledge, by any
person who is not a duly authorized Certified Massage Practitioner; or
I. There have been one or more acts prohibited under California Penal Code
Sections 266, 266a, 266e, 266f, 266g, 266h, 2661, 266j, 315, 316, 318, 647(b), or 653.22 taking
place on the premises of the massage establishment, whether or not any criminal prosecution has
been pursued or conviction obtained for such acts, and whether or not they occurred with or
without the actual knowledge of the permittee/certificate holder; or
J. The permittee/certificate holder or any person employed or retained by the
massage establishment or any other person on the premises of the massage establishment has
engaged in conduct or committed acts that a reasonable person in the patron's position would
understand as an offer to perform on or engage in with the patron acts that are sexual in nature or
that involve touching of the patron's genitals, pubic area, anus, and areola.
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10.90.150 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, podiatrists, physical therapists,
nurses, or 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, semi-professional, or professional athlete or athletic
team, so long as such persons do not practice massage therapy as their primary occupation at any
location where they provide such services in the City.
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.
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.
G. Enrolled students of a school of massage when they are performing massage
within the City as part of a formal supervised internship or training program operated by the
school, without compensation other than school credit, on the premises of a massage
establishment duly authorized to operate pursuant to the terms of this chapter; and provided that
the operator of the massage establishment has first notified the Permit Authority in writing of the
name, residence address, and school of the students and the dates of the trainings.
10.90.160 Violations a public nuisance; penalties, nuisance abatement, and other
remedies.
Any massage establishment operated, conducted, or maintained contrary to the provisions
of this chapter shall be, and the same is hereby declared to be, unlawful and a public nuisance,
and the City Attorney may, in addition to or in lieu of prosecuting a criminal action hereunder,
commence an action or actions, proceeding or proceedings, for the abatement, removal and
enjoinment thereof, in the manner provided by law. Such remedies shall be in addition to any
other judicial and administrative penalties and remedies available to the City under Chapters
1.40, 1.42, 1.44, or 1.46 of this code, or under State law.
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The foregoing Ordinance No. 1890 was read and introduced at a regular meeting of the City
Council of the City of San Rafael on the 1 st day of November, 2010, and was ordered passed to
print by the following vote, to wit:
AYES: Councilmembers: Brockbank, Connolly, Heller, Levine & 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 15th day of November, 2010.
ESTHER C. BEIRNE, City Clerk
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