HomeMy WebLinkAboutOrdinance 1927 (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:
ORDINANCE NO. 1927
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
AMENDING SAN RAFAEL MUNICIPAL CODE, CHAPTER 10.90 RELATING TO
MASSAGE THERAPY PRACTITIONERS AND ESTABLISHMENTS
is a true and correct copy of an Ordinance of said City, and was introduced ata REGULAR
meeting of the City Council of the City of San Rafael, held on the 1St day of December, 2014; a
SUMMARY of Ordinance No. 1927 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 December, 2014, by the following vote, to wit:
AYES: COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
WITNESS my hand and the official
Seal of the City of San Rafael this
24th day of December 2014
ESTHER C. BEIRNE
City Clerk
ORDINANCE NO. 1927
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
SAN RAFAEL AMENDING SAN RAFAEL MUNICIPAL CODE
CHAPTER 10.90 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
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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
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WHEREAS, SB 731 established a scheme for a voluntary certification process for
persons wishing to practice massage therapy in California, with the intention of enabling persons
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so certified to practice massage therapy in any city within the State. without being required to
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obtain a local permit to practice; and
WHEREAS, SB 731 included a sunset clause, expiring on January 1, 2015, to allow the
state to review the law and its impacts; and
WHEREAS, the "California Massage Therapy Council" was formed to administer the
laws enacted by SB 731, including the issuance of certifications to qualified massage
practitioners; and
WHEREAS, in 2010, the City Council adopted San Rafael Municipal Code Chapter
10.90, establishing g regulations governing massage therapy businesses and practitioners in
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compliance with SB 731, with the intention of reducing City involvement in local massage
therapy g licensing, while still encouraging and facilitating the ethical practice of massage therapy
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and complying with State law, by relying upon the uniform statewide regulations enacted by SB
731, and restricting the commercial practice of massage in the City to those persons duly
certified to practice by the California Massage Therapy Council; and
WHEREAS, in September 2014, the Legislature adopted Assembly Bill 1147 ("AB
1147'"j, amending the laws enacted by SB 731, which will go into effect on January 1, 2015; and
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WHEREAS, the City Council wishes to amend San Rafael Municipal Code Chapter
10.90 as a result of the enactment of AB 1147 as well as clean up, modify and clarify the
Ordinance provisions related to registration, inspection, operational standards and revocation
process; and
WHEREAS, this ordinance is enacted pursuant to Government Code Sections 51030-
51034 and Business and Professions Code Sections 4600 et seq., as amended by AB 1147;
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL
DOES HEREBY ORDAIN AS FOLLOWS:
DIVISION 1:
San Rafael Municipal Code Chapter 10.90 entitled "Massage Therapy" is hereby
amended to read in its entirety as follows:
10.90.010 Purpose and intent.
It is the purpose and intent of this chapter to provide for the orderly regulation of offices and
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establishments providing massage therapy services, and to prevent and discourage the misuse of
massage therapy as a front for prostitution and related activities in violation of state law, all in
the interests of the public health, safety, and welfare, by providing certain minimum building
sanitation, and operation standards for such businesses, and by requiring certain minimum
qualifications for the operators and practitioners of such businesses. It is the further intent of this
chapter to stream -line local massage therapy permitting procedures, while still facilitating and
advancing the ethical practice of relying massage therapy, by upon the uniform statewide
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regulations enacted by the Legislature in 2008 as Business and Professions Code sections 4600 et
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seq., known as the Massage Therapy Act, and by e massag
restricting the commercial practice of
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in the city to those persons duly certified to practice by the California Massage Therapy Council
formed pursuant to those statutes.
10.90.020 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. "California Massage Therapy Council" means the Massage Therapy Organization formed
pursuant to the Massage Therapy Act.
B. "Certified massage establishment" means a massage establishment, including, but not limited
to, a sole proprietorship, where each massage establishment owner and each person
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employed or retained to practice massage therapy for compensation as defined in subsection
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1.0,90.050(B) is a certified massage practitioner.
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C. "Certified massage establishment certificate" means the city -issued certificate required by
this chapter to operate a certified massage establishment.
D. "Certified massage practitioner" means any individual certified by the California Massage
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Therapy Council as a Certified Massage Practitioner or as a Certified Massage Therapist
pursuant to the Massage Therapy Act.
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E. "Compensation" means the payment, loan, advance, donation, contribution, deposit,
exchange, or gift of money or anything of value.
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F. "Inspector" means the person or persons designated by the permit authority to conduct any
inspections required or permitted under this chapter,
G. "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.
H. "Massage establishment" shall include the term "massage and/or bodywork office or
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establishment", and means an business or establishment that offers massage therapy in
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exchancre 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
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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.
1, "Massage establishment owner" or "owner of a massage establishment" shall mean and
include any of the following persons:
I , The sole proprietor of a sole proprietorship operating a massage establishment,
1. 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.
J. "Operator permit" means the permit required by this chapter to operate a massage
establishment that does not qualify as a certified massage establishment.
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K. "Operator" or "massage establishment operator" means any and all owners of a massage
establishment.
L. "Outcall massage service" means the engaging in or carrying on of massage therapy for
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compensation at a location other than a massage establishment that has been permitted
pursuant to this chapter.
M. "Patron" means an individual on the premises of a massage establishment for the purpose of
receiving massage therapy.
N. "Permit authority" means the chief of police or his or her designee charged with the
administration of this chapter.
O. "Person" means any individual, firm, association, partnership, corporation, joint venture,
limited liability company, or combination of individuals.
P. "Reception and waiting area" means an area immediately inside the main entry door of the
massage establishment dedicated to the reception and waiting of patrons of the massage
establishment and visitors, and which is not a massage therapy room or otherwise used for
the provision of massage therapy services.
Q. "Sole proprietorship" means a massage establishment where the owner owns 100 percent of
the business, is the only person who provides massage services for compensation for that
business pursuant to a valid and active California Massage Therapy Council certificate, and
has no other employees or independent contractors.
R. "Visitor" means any individual not retained or employed by the massage establishment and
not receiving or waiting to receive massage therapy services, but excluding law enforcement
personnel or governmental officials performing governmental business.
10.90.030 Certification by California Massage Therapy Council required for practitioners.
It shall be unlawful for any individual to practice massage therapy for compensation within
the city unless that individual is currently certified as a certified massage practitioner as defined
in section 10.90.020.
10.90.040 (Reserved.)
10.90.050 Operation of massage establishments—Certified massage establishment
certificate or operator permit required.
A. 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. 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 therapy 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:
1. 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
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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).
C. It shall be unlawful for an 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 therapy for compensation on the premises of a massage establishment unless and
until that person is listed on the certified massage establishment certificate required by
Section 10.90.060 of this chapter, or the operator permit required by Section 10.90.070 of
this chapter.
10.90.060 Operation of certified massage establishment—Certificate required.
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:
1. The name, address, and telephone number of the massage establishment.
2. The name, residence address and telephone number, and business address and telephone
number of the massage establishment owner(s) applying for the certified massage
establishment certificate.
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 (1) 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 (1) or more of the members is a
partnership, limited liability company, or corporation, the provisions of this section
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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
certified massage establishment is to be operated. In the event the applicant is not the
le -al owner of the property, the application shall be accompanied by a copy of any
written lease between the applicant and the property owner authorizino, 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, of
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 of each person that the massage establishment employs or retains to perform
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massage therapy for compensation, whether on or off the massage establishment
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premises.
7. For each person that the massage establishment does or will employ or retain to perform
massage therapy for compensation, whether on or off the massage establishment
premises, a copy of that person's current certification from the California Massacre
Therapy Council as a certified massage practitioner or as a certified massage therapist,
and a copy of that person's current California Massage Therapy Council -issued
identification card.
8. For each owner of the certified massage establishment, a copy of that person's current
certification from the California Massage Therapy Council as a certified massage
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practitioner or as a certified massage therapist and a copy of that person's current
California Massage Therapy Council -issued identification card.
B. Application Fee. An application for a certified massage establishment certificate shall be
accompanied by a fee as established by the City's Master Fee Schedule.
C. Massage Establishment Facilities and Operations—Requirements for Certified Massage
Establishment. A certified massage establishment shall comply with the requirements of
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section 10.90.090, with the following exceptions:
1. Sole Proprietorship. The provisions of subsections 10.90.090(A)(2) and
10.90.090(B)(1)—(3) shall not apply to a certified massage establishment which is a sole
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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
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provisions of subsections 10.90.090(A)(2) and 10.90.090(B)(1)—(3) and (B)(5) shall not
apply, and the portions of the residence subject to the requirements of subsections
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. 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. The certificate shall include, but not be limited to, the name
of the massage establishment, the address of the massage establishment, the names of the
owner or owners of the massage establishment, the date of issuance of the certificate, the date
of expiration of the certificate, the certificate number, a listing of the certified massage
practitioners registered and authorized to perform massages for the massage establishment,
and a listing of any other persons employed or retained to work in any other capacity on the
premises.
E. 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 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.
F. Notice of Denial—Appeal—Judicial Review. 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. The applicant shall have the right to appeal from a
decision by the permit authority to deny a certificate application by filing with the city clerk a
written notice of appeal, specifying the grounds for such appeal, within fifteen (15) days after
the decision has been served on the applicant. Such appeal shall be heard by a hearing officer
appointed by the permit authority, upon not less than fifteen (15) days written notice to the
applicant. The designated hearing officer shall consider all relevant evidence at the hearing,
may continue the hearing for good cause, and may require such legal briefing as may be
required to address any issues raised by the appeal. Within a reasonable time, but not more
than thirty (30) days following the conclusion of the hearing, the hearing officer shall issue a
written decision as to whether the application shall be granted or denied, supported by factual
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findings and determinations referenced by supporting evidence. The written decision shall be
served on the applicant as provided in Code of Civil Procedure Section 1094.6, with a copy
served on the permit authority. The written decision of the hearing officer shall be final and
shall be subject to judicial review according to the provisions and time limits set forth in
Code of Civil Procedure Section 1094.6.
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G. Display 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
main entry door and/or reception and waiting area of the massage establishment.
H. Term, A certified massage establishment certificate issued pursuant to the terms of this
chapter shall be valid for a term of one (1) year from the date of issuance, and, unless
suspended or revoked, must be renewed by the massage establishment operator annually so
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long as the massage establishment is operating within the city.
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I. Requirement to Amend Certified Massage Establishment Application; Amendment Fee. In
addition to the requirements of sections 10.90. 100 and 10.90. 110, whenever the information
provided in the application for certified massage establishment certificate on file with the city
changes, for example by a change in employees, the operator shall, within ten (10) business
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days after such change, file with the permit authority an application for amendment to the
certified massage establishment to reflect such change. An application for an amendment to
a certified massage establishment certificate shall be accompanied by a fee as established by
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the City's Master Fee Schedule. It shall be a violation of Section 10.90.050(C) of this
chapter for the operator to allow any person to perform massage therapy for compensation on
the premises of a massage establishment unless and until an amended certified massage
establishment certificate has been issued by the permit authority identifying that person as
employed or retained by the massage establishment to practice massage therapy for
compensation.
J. Violations --Operator Responsibility; Suspension or Revocation of Certified Massage
Establishment Certificate.
1. For the purpose of enforcing the requirements of this chapter, the massage establishment
operator shall be responsible for the conduct of all massage establishment employees,
agents, independent contractors, or other representatives while such persons are on the
premises of the massage establishment or providing outcall massage services on behalf of
the massage establishment.
1 In addition to any other remedy available to the city under this code or state law, a
certified massage establishment certificate may be suspended or revoked by the permit
authority as provided in - Sections 10.90. 120 and 10.90.130. Upon revocation of a certified
massage establishment certificate for a massage establishment, the massage establishment
shall immediately cease operation, and, if so ordered by the hearing officer, no other
massaQ,e establishment shall be permitted to operate at that location by any person for a
period of not less than one (1) year ("the moratorium period"). If the operator is not also
the e establishment is situated, massage legal owner -of the real property on which the
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notice of such revocation and the one-year prohibition shall be provided by the permit
authority to the owner of record of the property as shown on the latest county assessment
roll.
3. In addition to any other remedy available to the city under this code or state law, a
certified massage establishment certificate may not be renewed or amended by the
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operator unless and until due and unpaid citations issued to the operator pursuant to this
chapter are paid in full. Citations shall not be deemed to be due and unpaid until the 30 -
day period for appeal of the citation has passed.
4. Notwithstanding any other provision of this chapter, where a Notice of Revocation or
Suspension has been issued to the operator of a massage establishment pursuant to
Section 10.90.130 of this chapter, the permit authority shall not process or grant an
application fora certified massage establishment certificate or operator permit for a new
massage establishment at the same premises unless and until such Notice of Revocation
or Suspension is: dismissed; or a final determination is made pursuant to that section that
the current operator's certified massage establishment certificate or operator permit is not
or should not be revoked; or any moratorium period imposed pursuant to this subsection
or subsection 10.90.070(K) has expired.
10.90.070 Regulations applicable to operation of massage establishment other than certified
massage establishment—Operator permit required.
No massage establishment may operate in the city that does not qualify as a certified massage
establishment, unless and until all owners of the massage establishment have applied for and
obtained an operator permit for the massage establishment from the permit authority under this
section.
A. Application for Operator Permit. All owners of the massage establishment, or their duly
authorized agent, shall file an application for an operator permit for the massage
establishment on a form provided by the permit authority. For purposes of this section, the
"applicant" for the operator permit shall refer to and include each and every owner of the
massage establishment. The application shall include the following information:
1. Name, address, and telephone number of the massage establishment,
2. The name, residence address and telephone number, and business address and telephone
number of the massage establishment owner(s) applying for the operator permit.
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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 (1) 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 (1) or more of the members is a
partnership, limited liability company, or corporation, the provisions of this section
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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 of each person that the massage establishment employs or retains to perform
massage therapy for compensation, whether on or off the massage establishment
premises.
7. For each person that the massage establishment employs or retains to perform massage
therapy for compensation, whether on or off the massage establishment premises, 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 current 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.
10. Whether the applicant is currently required to register under the provisions of Section 290
of the California Penal Code.
11. The applicant's business, occupation, and employment history for five (5) years preceding
the date of application, and the inclusive dates of same.
12. One (1) set of fingerprints for each applicant in a form satisfactory to the permit
authority. The fingerprints shall be taken at a place designated by the permit authority,
and any required fee for such fingerprinting shall be paid by the applicant.
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13. Such other information as may be required by the permit authority to determine
compliance with any other eligibility requirements for issuance of the permit as specified
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by federal, state, or local law. The permit authority may waive any of the requirements of
this section for an owner who is also a certified massage practitioner.
B. Application Fee. Any application for an operator permit Linder this chapter shall be
accompanied by a nonrefundable application fee in an amount established by resolution of
the city council.
C. Massage Establishment Facilities and Operations. A massage establishment shall comply
with the requirements of section 10.90.090.
D. Operator Permit—Criteria for Granting or Denying. The permit authority shall grant an
operator permit for the massage massage establishment if the e establishment owners have
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satisfied the requirements of this section and all other applicable laws including, but not
limited to, the city's building, zoning, and health regulations, unless the permit authority
determines any or more of the following to be true:
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 been convicted in a
court of competent jurisdiction of any offense that relates directly to the operation of a
massage establishment whether as a massage establishment owner or operator or as a
person practicing massage for compensation, 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 establishment; or
2. The applicant is currently required to register under the provisions of Section 290 of the
California Penal Code; or
3. The applicant, or any shareholder, partner, or member of the applicant, within five (5)
years of the date of application, has been convicted in a court of competent jurisdiction of
any violation of Sections 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318,
647(b), [or] 653,22 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 that is the
equivalent of any of the aforesaid offenses; or
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 ajurisdiction outside the State of California; or
5. The applicant, or any shareholder, partner, or member of the applicant, has knowingly
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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
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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,
engaged
266=1o,
, 266h, 2661, 264 315, 316, 318, 647(b), or 653.22; or
S. 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
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establishment revoked or denied in any jurisdiction.
E Operator Permit—Issuance.
The operator permit shall include, but not be limited to, the name of the massage
establishment, the address of the massage establishment, the names of the owner or owners
of the massage establishment, the date of issuance of the permit, the date of expiration of the
permit, the permit number, a listingb of the certified massage practitioners registered and
authorized to perform massages for the massage establishment, and a listing of any other
persons employed or retained to work in any other capacity on the premises.
F. 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.
G. Notice of Denial—Appeal—Judicial Review. 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. The applicant
shall have the right to appeal from a decision by the permit authority to deny an operator
permit application by filing with the city clerk a written notice of appeal, specifying the
,,rounds for such appeal, within fifteen (15) days after the decision has been served on the
applicant. Such appeal shall be heard by a hearing officer appointed by the permit authority,
upon not less than fifteen (15) days written notice to the applicant. The designated hearing
officer shall consider all relevant evidence at the hearing, may continue the hearing for good
cause, and may require such legal briefing as may be required to address any issues raised by
the appeal. Within a reasonable time, but not more than thirty (30) days following the
conclusion of the g hearing, the hearing officer shall issue a written decision as to whether the
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application shall be granted or denied, supported by factual findings and determinations
referenced by supporting evidence. The written decision shall be served on the applicant as
provided in Code of Civil Procedure Section 1094.6, with a copy served on the permit
authority. The written decision of the hearing officer shall be final and shall be subject to
judicial review according to the provisions and time limits set forth in Code of Civil
Procedure Section 1094.6.
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H. Display 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.
1. Term. An operator permit issued pursuant to the terms of this chapter shall be valid for a term
of one (1) 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.
J. Requirement to Amend Operator Permit application. In addition to the requirements of
sections_ 10.90.100 and 10,90.110, whenever the information provided in the application for
operator permit on file with the city changes, for example by a change in employees, the
operator shall, within ten (10) business days after such change, file an amendment to the
operator permit application with the permit authority. An amendment to an operator permit
application shall be accompanied by a fee as established by the City's Master Fee Schedule.
It shall be a violation of Section 10.90.050(C) of this chapter for the operator to allow any
person to perform massage therapy for compensation on the premises of a massage
establishment unless and until an amended operator permit has been issued by the permit
authority identifying that person as employed or retained by the massage establishment to
practice massage therapy for compensation.
K. Violations—Operator Responsibility; Suspension or Revocation of Operator Permit.
1. For the purpose of enforcing the requirements of this chapter, the massage establishment
operator shall be responsible for the conduct of all massage establishment employees,
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agents, independent contractors, and other representatives, while on the premises of the
business or establishment or providing outcall massage services on behalf of the massage
9
establishment.
2. In addition to any other remedy available to the city under this code or state law, an
operator permit may be suspended or revoked by the permit authority as provided in
Sections 10.90.120 and 10.90.130. Upon revocation of an operator permit for a massage
establishment, the massage establishment shall immediately cease operation, and, if so
ordered by the hearing officer, no other massage establishment shall be permitted to
operate at that location by any person for a period of not less than one (1) year ("the
moratorium period"). If the operator is not also the legal owner of the real property on
which the massage establishment is situated, notice of such revocation and the one-year
prohibition shall be provided by the permit authority to the owner of record of the
property as shown on the latest county assessment roll.
3. In addition to any other remedy available to the city under this code or state law, an
operator permit may not be renewed or amended by the operator unless and until due and
unpaid citations issued to the operator pursuant to this chapter are paid in full. Citations
shall not be deemed to be due and unpaid until the 30 -day period for appeal of the
citation has passed.
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4. Notwithstanding any other provision of this chapter, where a Notice of Revocation or
Suspension has been issued pursuant to Section 10,90.130 of this chapter to the operator
of a prior massage establishment on the same premises, the permit authority shall not
process or grant an application fora new massage establishment certificate or operator
permit at the same premises unless and until such Notice of Revocation or Suspension is:
dismissed; or a final determination is made pursuant to that section that the current
operator's certified massage establishment certificate or operator permit is not or should
not be revoked; or any moratorium period imposed pursuant to this subsection or
subsection 10.90.060(J) has expired.
10.90.080 Massage establishment inspection.
A. The inspector shall have the right to enter any massage establishment during regular business
CI C)
hours, without a search or inspection warrant, to make reasonable inspection to ascertain
whether there is compliance with the provisions of this chapter.
B. The massage establishment operator shall take immediate action to correct each violation
noted by the inspector. A reinspection will be performed within thirty (30) days to ensure that
each violation noted by the inspector has been corrected.
10.90.090 Requirements for all massage establishment facilities and operations.
A. Operational Requirements. Except as otherwise specifically provided in this chapter, the
massage following operational requirements shall be applicable to all e establishments located
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within the city:
1. No massage establishment shall be kept open for business between the hours of ten p.m.
(10:00 pm.) of one (1) day and seven a.m, (7:00 a.m.) of the massage
following g day. A e
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begun any time before ten p.m. (10:00 p.m,) must nevertheless terminate at ten p.m.
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(10:00 p.m.). The hours of operation of the massage establishment shall be displayed in a
conspicuous public place in the reception and waiting area and in any front window
11
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. During the hours of operation, patrons shall be permitted in massage therapy rooms only
if at least one (1) duly authorized certified massage practitioner is present on the premises
of the massage establishment. Patrons shall not be permitted in any employee break
room on the premises.
4. During the hours of operation, visitors shall not be permitted in massage therapy rooms
except as follows:
W,
(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; or
(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, except as otherwise provided herein, no visitors shall be
permitted in massage therapy rooms, break rooms, dressing rooms, showers., or any other
room or part of the massage establishment premises other than the reception and waiting
area or the toilets.
6. 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.
7. 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 request or demand fees other than those posted.
B. Physical Facility and Building and Fire Code Requirements, Except as otherwise specifically
provided in this chapter, the following physical facility and building code requirements shall
be applicable to all massage establishments located within the city:
L Main Entry Door and Reception and Waiting Area Required. One (1) main entry door
shalt be provided for patron entry to the massage establishment, which shall open to an
interior patron reception and waiting area immediately. All patrons and any persons
other than individuals employed or retained by the massage establishment shall be
required to enter and exit through the main entry door. Unless the massage establishment
is a sole proprietorship or a home occupation, the main entry door shall be unlocked at all
times during, business hours.
2. No g massage establishment located in a building or structure with exterior windows
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fronting a public street, highway, walkway, or parking area shall block visibility into the
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interior reception and through waiting area h the use of curtains, closed blinds., tints, or any
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other material that obstructs, blurs, or unreasonably darkens the view into the premises.
I All interior doors. including massage therapy rooms or cubicles, but excluding individual
dressing rooms and toilet rooms, shall be incapable of being locked and shall not be
blocked to prevent opening. Draw drapes, curtain enclosures, or accordion -pleated
closures in lieu of doors are acceptable on all inner massage therapy rooms or cubicles.
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4. Minimum lighting equivalent to at least one (1) 40 -watt light shall be provided in each
massage therapy room or cubicle.
5. A massage table shall be used for all massage therapy, with the exception of "Thai,"
"Shiatsu," and similar forms of massage therapy, which may be provided on a padded
mat on the floor, provided the patron is fully attired in loose clothing, pajamas, scrubs, or
similar style of garment. Massage tables shall have a minimum height of eighteen (18)
inches.
6. Beds, floor mattresses, and waterbeds are not permitted on the premises of the massage
establishment, and no massage establishment shall be used for residential or sleeping
purposes.
T All locker facilities that are provided for the use of patrons shall be fully secured for the
protection of the patrons' valuables, and each patron shall be given control of the key or
other means of access.
S. The building massage establishment shall comply with all applicable state and local
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standards (as adopted in title 12 of this code) and the fire code (as adopted in title 4 of
this code).
C. Health and safety requirements. Except as otherwise specifically provided in this chapter, the
massage following health and safety requirements shall be applicable to all e establishments
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located within the city:
The massage establishment shall at all times be equipped with an adequate supply of
clean sanitary towels, coverings, and linens, and all massage tables shall be covered with
a clean sheet or other clean covering for each patron. After a towel, covering, or linen has
been used once, it shall be deposited in a closed receptacle and not used again until
properly laundered and sanitized. Towels, coverings, and linens shall be laundered either
by regular commercial laundering, or by a noncommercial laundering process that
includes immersion in water at least one hundred forty (140) degrees Fahrenheit for not
less than fifteen (15) minutes during the washing or rinsing operation. Clean towels,
coverings, and linens shall be stored in closed, clean cabinets when not in use.
2. All massage therapy rooms or cubicles, wet and dry heat rooms, toilet rooms, shower
compartments, hot tubs, and pools shall be thoroughly cleaned and disinfected as needed,
and at least once each business day when the premises have been or will be open and
such facilities in use. All bathtubs shall be thoroughly cleaned and disinfected after each
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use.
3. All liquids, creams, or other preparations used on or made available to patrons shall be
kept in clean and closed containers. Powders may be kept in clean shakers. All bottles
and containers shall be distinctly and correctly labeled to disclose their contents. When
only a portion of a liquid, cream, or other preparation is to be used on or made available
to a patron, it shall be removed from the container in such a way as not to contaminate
the remaining portion.
I
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;
(e) Use of any needle-like instrument for the purpose of extracting skin blemishes; and
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(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 (1) patron, or shall
be laundered after each use pursuant to subsection (C)(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 (1)
patron, or shall be fully 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
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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 (1) patron, or shall
be fully disinfected after each use.
S. 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
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alcoholic beverages be kept or possessed on the premises of a massacre establishment.
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D. Attire and Physical Hygiene Requirements. The following attire and physical hygiene
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requirements shall be applicable to all employees and any other persons who work
permanently or temporarily on the premises, of a massacre establishment within the city,
including, but not limited to, all persons who are employed or retained to practice massage or
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bodywork for the massage establishment:
1. No person shall dress in:
(a) attire that is transparent, see-through, or substantially exposes the person's
undergarments;
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(b) swim attire, if not providing a water-based massage modality approved by the
California Massage Therapy Council;
(c) a manner that exposes the person's breasts, buttocks, or genitals;
(d) a manner that constitutes a violation of Section 314 of the California Penal Code.
2. No massage establishment operator, employee, or visitor shall, while on the premises of a
massage establishment or while performing any outcall massage service, and while in the
presence of any patron, customer, employee or visitor, expose his or her genitals,
buttocks, or chest.
3. All persons shall thoroughly wash their hands with soap and water or any equally
effective cleansing agent immediately before providing massage therapy to a patron. No
massage therapy shall be provided upon a surface of the skin or scalp of a patron where
such skin is inflamed, broken (e.g., abraded or cut), or where a skin infection or eruption
is present.
E. Display of Permit and Certifications. Each person employed or retained by a massage
establishment to perform massage therapy in or on the premises or through an outcall
massage service shall display on his or her person the valid current photograph -bearing
identification card issued to that employee by the California Massage Therapy Council
pursuant to the Massage Therapy Act. A copy of each such identification card shall also be
displayed in an open and conspicuous place visible from the main entry door and/or reception
and waiting area of the massage establishment, The home address of any employee need not
be displayed,
10.90.100 Change of business name or location.
No person permitted to operate a massage establishment under this chapter shall operate
under any name or conduct business under any designation not specified in the certified massage
establishment certificate or operator permit and city business license. Upon a change of location
of a massage establishment where there is no change of massage establishment owner(s), an
application for an amended certified massage establishment certificate or operator permit shall be
filed with 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 any due and unpaid
citations issued to the operator pursuant to this chapter are paid in full. Citations shall not be
deemed to be due and unpaid until the 30 -day period for appeal of the citation has passed.
10.90.11.0 Sale or transfer of massage establishment or ownership interest therein.
Upon a sale or transfer of any massage establishment, or upon the sale or transfer of some or
all of the interest of any massage establishment owner to a person who is not already an owner of
the massage establishment, a new certified massage establishment certificate or operator permit
shall be required.
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10.90.120 Grounds for revocation or suspension of operator permit or certified massage
establishment certificate.
All massage establishment operators shall be deemed to know and understand the
requirements and prohibitions of this chapter. Any operator permit or certified massage
establishment certificate 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 any of
tD,
the following have occurred on even a single occasion:
A. The person(s) to whom the operator permit or certified massage establishment certificate has
been issued, or any person employed or retained by the massage establishment, has been
found to have violated any provision of this chapter; or
B. Any owner of a massage establishment which is operating pursuant to a certified massage
I -
establishment certificate is no longer qualified as a certified massacre practitioner for any
L_
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
9 Z-1
Code Sections 266, 266a, 266e, 266f, 2668, 266h, 2661, 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 massacre
establishment is required to register under Section 290 of the California Penal Code; or
E. The permi ttee/certi fic ate 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
LI
working in or for the massage establishment; or
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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. Massacre treatments are or have been performed on the premises of the massage
establishment, with or without the permittee/certificate holder's actual knowledge, by any
person who is not a duly authorized certified massage practitioner; or
1. There have been one (1) or more acts prohibited under California Penal Code Sections 266,
266a, 266e, 266f, 2668. 266h, 2661, 266j, 315, 316, 318, 647(b), or 653.222 taking place on
IN
the premises of the massage establishment, whether or not any criminal prosecution has been
r -I
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
I The permittee/certificate holder or any person employed or retained by the massage
establishment or any other person on the premises of the ed
engag
massage establishment has
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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
engage
nature or that involve touching of the patron's genitals, pubic area, anus, and areola.
10.90.130 Hearing by permit authority for revocation or suspension.
A. Written Notice Required. The permit authority, before revoking or suspending any operator
permit or certified massage establishment certificate, shall serve the permittee/certificate
holder with written Notice of Revocation or Suspension, provided in the manner set forth in
section 1,08.060 of this code, of the alleged grounds for revocation or suspension and the
date for a hearing, to be held no less than ten (10) days and no more than sixty (6o) days after
the service of the written notice, to consider whether the permit shall be revoked or
suspended.
B. Hearing, The permit authority shall appoint a hearing officer to hear and consider all
evidence at the nCFmay, hearing. The hearing after being commenced within the time specified
L- t� -
pursuant to subsection (A) of this section, be continued for good cause by the hearing officer
from time -to -time. The hearing officer may require such legal briefing as may be required to
address any issues raised at the hearing.
C Notice of Decision; Judicial Review. Within a reasonable time, but not more than thirty (30)
days following the conclusion of the hearing, the hearing officer shall issue a written
decision as to whether the permit/certificate shall be revoked or suspended, supported by
factual findings and determinations referenced by supporting evidence. The written decision
shall be served on the permittee/certificate holder as provided in Code of Civil Procedure
Section 1094.6, with a copy submitted to the city clerk and the city attorney. The written
decision of the hearing officer shall be final and shall be subject to judicial review according
tl i 1 1 Z71
to the provisions and time limits set forth in Code of Civil Procedure Section 1094.6.
10.90.140 Business license required.
The requirements of this chapter shall be in addition to any business license and business
license tax requirements imposed pursuant to chapter 10.04 of this code for operation of a
massage establishment,
10.90.150 Exemptions.
us]
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
L- -
other person licensed to practice any healing art Linder the provisions of Division ')
(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.
Z-1 Z-- tl
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 addressand school of the students and the dates of the trainin-
esi . C,s.
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 this chapter,
or chapters 1.40, 1.42, 1.44, or 1.46 of this code, or under state law.
DIVISION 3:
This Ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to
the State CEQA Guidelines, since it can be seen with certainty that there is no possibility that
21
this Ordinance, containinc, minor amendments to the registration, inspection and revocation
processes for massage establishments or its implementation, would have a significant effect on
the environment and is covered by the general rule, pursuant to 14 Cal. Code Regs. Section
15061(b)(3).
DIVISION 4:
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.
A summary of this Ordinance shall be published and a certified copy of the full text of
this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to the
Council meeting at which it is adopted,
This Ordinance shall be in full force and effect thirty (30) days after its final passage, and
the summary of this Ordinance shall be published within fifteen (15) days after the adoption,
together with the names of the Councilmembers voting for or against same, in the Marin
Independent Journal, a newspaper of general circulation published and circulated in the City of
t1-
San Rafael, County of Marin, State of California.
Within fifteen (15) days after adoption, the City Clerk shall also post in the office of the
City Clerk, a certified copy of the full text of this Ordinance along with the names of those
Councilmembers voting c, for and against the Ordinance.
t--
/AR4O. PHI LIPS, Mayor
ATTEST:
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a
ESTHER C. BEIRNE, City Clerk
The foregoing Ordinance No. 1927 was read and introduced at a regular meeting of the City
Council of the City of San Rafael on the I" day of December, 20t4, and was ordered passed to
print by the following vote, to wit-,
41-
22
AYES: Councilmembers: Bushey, Colin, Connolly, McCullough & Mayor Phillips
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 December, 2014.
ESTHER C. BEIRNE, City Clerk
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