Alameda County Municipal Code Ch. 3.24 Massage Establishments

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Editor's note— Ord. No. 2018-18, § 2, adopted May 8, 2018, amended Chapter 3.24 in its entirety to read as herein set out. Former Chapter 3.24, §§ 3.24.010—3.24.340, pertained to similar subject matter, and derived from prior gen. code §§ 2-130—2-130.32 and Ord. No. 95-43.

In enacting this chapter, the Board of Supervisors of the County of Alameda recognizes that massage is a viable professional field offering the public valuable health and therapeutic services.

The Board of Supervisors further recognizes that unless properly regulated, the practice of massage and the operation of massage establishments may often be associated with unlawful activity and pose a threat to the quality of life in the community. Therefore, it is the purpose and intent of this chapter that the practice of massage and the operation of massage establishments be regulated in order to protect the public health, safety and welfare.

(Ord. No. 2018-18, § 2, 5-8-18)

As used in this chapter, the following words and phrases have the meanings respectively ascribed to them by this section:

"Applicant" means any person who applies for a permit as required by this chapter.

"Certified" means possession of a certification from the council.

"Council" or "CMTC" means the California Massage Therapy Council created pursuant to Business and Professions Code, Division 2, Chapter 10.5.

"Managing employee" means any employee of a massage establishment who has been designated by the holder of the massage establishment permit to manage the business in his or her absence. The managing employee may perform massages at the business only if he/she obtains and maintains in effect a massage practitioner permit.

"Massage" means any method of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or with the aid of any tools or appliances with or without such supplementary aids as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointments or other similar preparations commonly used in this practice.

"Massage establishment" means any establishment having a fixed place or business where any person engages in or carries on or permits to be engaged in or carried on any of the activities mentioned in the definition of massage in this chapter. Such establishment shall have health enhancement as part of its purpose.

"Massage practitioner" means any person, who, for any consideration whatsoever, engages in the practice of massage.

"Off-premises massage service" means any business, not licensed as a massage establishment under the provisions of this chapter, wherein a function of such business is to engage or carry on massage, not at a fixed location but at a location designated by the permittee, massage practitioner, customer or client. Such business shall have health enhancement as part of its purpose.

"Permit" means any permit required and issued pursuant to the provisions of this chapter.

"Permittee" means any person possessing a permit required and issued pursuant to the provisions of this chapter.

"Person" means any individual, co-partnership, firm, association, joint-stock company, corporation or combination of individuals of whatever form or character.

"Sheriff" as used herein refers to that deputy sheriff who is responsible for receiving applications and the required fees, and conducts the investigation necessary in the processing of applications for permits required by this chapter. The officer shall have the right to verify the authenticity of any information supplied pursuant to the requirements of this chapter.

(Ord. No. 2018-18, § 2, 5-8-18)

It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the unincorporated area of the County of Alameda the application of massage for compensation, the operation of a massage establishment or an off-premises massage service without first having obtained the appropriate permit from the sheriff and certification from the CMTC.

(Ord. No. 2018-18, § 2, 5-8-18)

A. Permits shall only be available for massage services to be provided by CMTC-certified massage practitioners.

B. The application for a permit to operate a massage establishment or off-premises massage service shall set forth:

1. The exact nature of the massage to be administered;

2. The proposed place of business and facilities;

3. The name and address of each applicant;

4. The name, address and CMTC certificate number for each massage practitioner; and

5. A description of the type of relationship between the applicant and each massage practitioner (i.e., employee, independent contractor, general partner, etc.).

C. In addition to the foregoing, any applicant for a permit shall furnish the following information:

1. The two previous addresses immediately prior to the present address of the applicant;

2. Written proof that the applicant is at least eighteen (18) years of age;

3. Applicant's height, weight, color of eyes and hair;

4. Two portrait photographs at least two inches by two inches;

5. Business, occupation or employment history of the applicant for the five years immediately preceding the date of the application;

6. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation, together with the names and residence addresses of each of its officers, directors, and each stockholder holding more than five percent of the stock of the corporation, along with the amount of stock held. If the applicant is a partnership or company, the application shall set forth the name and residence addresses of each of the partners or members, including limited partners or members. If one or more of the partners or members is a corporation, the provisions of this section pertaining to a corporate applicant shall apply;

7. The names and residence addresses of all persons currently employed by the massage establishment, regardless of the nature of the employment, along with the nature of the work performed, and recent passport-sized photographs of each such employee. All applicants or permittees shall notify the sheriff in writing of the names, addresses and the nature of the work, of any new employees, within five days of such employment, and supply the photographs described in this subsection. Such new employees shall allow fingerprints to be taken, for the purpose of identification, upon request. As used in this subsection, "employee" includes every owner, partner, manager, supervisor and worker, whether paid or not, who renders personal services of any nature in the operation of a massage establishment;

8. All criminal convictions except minor traffic violations, and all pending criminal matters;

9. Such other identification and information necessary to verify the truth of the matters hereinbefore specified;

10. A written statement that neither the applicant nor any of the owners or partners of the business have knowingly made any false, misleading, or fraudulent statement of facts in the application for the permit or in any other document required by the county in conjunction therewith.

(Ord. No. 2018-18, § 2, 5-8-18)

The application for a massage practitioner permit shall contain the information required by Section 3.24.040(B)(1) through (5) and (8) through (10) and the name and address of the massage school attended by each massage practitioner.

(Ord. No. 2018-18, § 2, 5-8-18)

Application for a managing employee permit shall contain but not be limited to the information required by Section 3.24.040(B)(1) through (5) and (8) through 10).

(Ord. No. 2018-18, § 2, 5-8-18)

All applicants for a massage practitioner permit must obtain a certificate from CMTC to qualify for a permit.

(Ord. No. 2018-18, § 2, 5-8-18)

The sheriff, upon receiving an application for a massage establishment permit, shall refer the application to the building official, the appropriate fire protection district, the department of health services and the planning department, which departments shall inspect the premises proposed to be operated as a massage establishment and make written recommendations to the sheriff concerning compliance with the provisions of this chapter and all other laws which they administer.

(Ord. No. 2018-18, § 2, 5-8-18)

The sheriff shall issue a nontransferable permit based upon his investigation, within forty-five (45) days after the complete application has been filed if he finds that the operation as proposed by the applicant, would comply with all applicable laws and permitting or licensing requirements, including, but not limited to, this chapter, the building, zoning, fire, and health laws of the county as administered by each county department with jurisdiction.

A massage establishment permit or off-premises massage service permit may be issued conditionally in order to ensure compliance with the provisions of this chapter.

(Ord. No. 2018-18, § 2, 5-8-18)

The sheriff shall issue a nontransferable managing employee or massage practitioner permit within forty-five (45) days of the date of receipt of the complete application if he finds that the application complies with this chapter.

(Ord. No. 2018-18, § 2, 5-8-18)

The provisions of this chapter shall not apply to:

A. Physicians, surgeons, chiropractors, osteopaths, nurses, physical therapists, or other health professionals who are duly licensed to practice their respective professions under the laws of the state;

B. Massage practitioners who are performing massage in the offices of or under the supervision of a licensed medical professional;

C. Barbers or cosmetologists who are duly licensed under the laws of the state while performing massage within the scope of their licenses.

(Ord. No. 2018-18, § 2, 5-8-18)

When massage is conducted as a function that is clearly incidental to the operation of an athletic or fitness facility, barber shop, or beauty salon, the business will not be required to comply with the massage establishment requirements of this chapter provided the giving of massage for compensation is not a principal function of such business. All massage practitioners operating in such businesses shall be CMTC certified in accordance with the requirements of this chapter. In determining whether massage constitutes a principal or incidental function of the previously mentioned businesses, the sheriff shall consider the percent of income derived from massages, the amount of floor space devoted to and the number of employees assigned to massage services, as well as the manner in which the business advertises and holds itself out to the public. The decision of the sheriff regarding whether a particular business is entitled to exemption may be appealed to the Board of Supervisors through the procedures set forth in Section 3.24.300.

(Ord. No. 2018-18, § 2, 5-8-18)

Persons administering massages or health treatments involving massage to other persons who are participating in a recreational or special event that has been approved and registered by the sheriff shall be CMTC certified but will not be required to hold an off-premises massage permit provided the following conditions are met:

A. The massage practitioner or therapist shall be registered with the Alameda County Sheriff's Office;

B. Massage services are made available equally to all participants in the event;

C. The event is open to participation by the general public or a significant segment of the public;

D. The massage services are provided during the event in an open environment at the site of the event;

E. The sponsors of the event have approved the provision of massage services at the event.

(Ord. No. 2018-18, § 2, 5-8-18)

All massage establishments shall comply with the following facilities and operation requirements:

A. Massage establishments shall comply with all applicable code requirements.

B. Lighting. White light equivalent to at least forty (40) watts of lighting shall be provided in each room where a massage is being administered.

C. Walls and Floors. Any toilet, shower, and bathtub rooms shall be provided with a waterproof floor covering, which shall be covered up to a height of four inches with a three-eighths inch minimum radius coving. The walls of all shower and bathtub rooms shall be finished to a height of six feet with a smooth, nonabsorbent finished surface of Keene cement, tile, fiberglass reinforced panel (FRP), or similar material. Floors of wet and dry heat rooms shall be adequately pitched to one or more floor drams properly connected to the sanitary sewer (Exception: Dry heat rooms with wooden floors need not be provided with pitched floors and floor drains). A source of hot water must be available within the immediate vicinity of dry and wet heat rooms to facilitate cleaning.

The walls, ceilings, floors, pools, showers, bathtubs, steam rooms, toilets, and all other physical facilities including appliances and apparatuses for the establishment must be in good repair and maintained in a clean and sanitary condition. Ceilings of all rooms shall be smooth and cleanable. Wet and dry heat rooms, steam and vapor rooms, or steam or vapor cabinets, shower compartments and toilet rooms shall be thoroughly cleaned and disinfected on a daily basis each day the business is in operation. Bathtubs shall be thoroughly cleaned and disinfected after each use.

D. Equipment. All equipment used in the massage operation shall be maintained in a clean and sanitary condition.

E. Rest Rooms. Adequate rest room facilities, either separate or unisex, with appropriate door signs shall be available for use by customers. All lavatories or wash basins shall be provided with hot and cold running water, soap and single service towels in wall mounted dispensers.

F. Ventilation. All portions of the massage establishment's toilets and baths shall be provided with adequate ventilation by means of windows or skylights with an area of not less than one-eighth of the total floor area or a mechanical operating ventilating system. When windows or skylights are used for ventilating, at least one-half of the total required window area shall be operable.

G. Linens. All massage establishments shall be provided with clean and sanitary towels, sheets and linens in sufficient quantity and freshly laundered. Towels, sheets and linen shall not be used for more than one person. The reuse of such linen shall be prohibited unless such linen has first been laundered. Heavy white paper may be substituted for sheets provided such paper is used only once for every person and then discarded. Cabinets or other covered space shall be provided for the storage of clean linen. Receptacles shall be provided for the storage of all soiled linen and paper towels.

H. Pads used on massage tables shall be covered with durable, washable plastic or other acceptable waterproof material.

J. No service enumerated in the definition of massage in Section 3.24.020 of this chapter may be carried on in any cubicle, room, booth or any area within a massage establishment which is fitted with a door capable of being locked. Secondary security doors at the entrance to the business shall remain unlocked during business hours, unless the massage establishment is a business entity owned by one individual with one or no employees or independent contractors and has registered as such with the sheriff. The sheriff may grant an exception to this requirement if the massage establishment provides a description of the physical site and operations plan that demonstrates that other security measures are appropriate.

K. Each service offered, the price thereof and the minimum length of time such service shall be performed shall be posted in a conspicuous public location in each massage establishment. No services shall be performed and no sums shall be charged for any services other than those posted. Such services shall be legitimate, recognized massage/bodywork functions that comply with CMTC standards. No massage practitioner shall perform, offer to perform, solicit or in any other way make available any service that is not a legitimate massage/bodywork function recognized by the CMTC.

L. No employee or massage practitioner shall dress while engaged in the practice of massage for compensation, or while visible to clients in a massage establishment, in any of the following:

1. Attire that is transparent, see-through, or substantially exposes the certificate holder's undergarments;

2. Swim attire, if not providing a water-based massage modality approved by the council;

3. A manner that exposes the certificate holder's breasts, buttocks, or genitals;

4. A manner that constitutes a violation of Section 314 of the Penal Code; or

5. A manner that is otherwise deemed by the council to constitute unprofessional attire based on the custom and practice of the profession in California.

M. The business shall not engage in sexually suggestive advertising related to massage services.

N. No massage establishment or any portion of a building in which the massage establishment is located shall be used for residential or sleeping purposes.

O. No alcoholic beverages or other controlled substances shall be sold, served, furnished, kept, and no person shall enter, be, or remain in any part of a massage establishment while in possession of, consuming, or using any alcoholic beverage or other controlled substances, except pursuant to a prescription for such controlled substances. The owner, operator, or responsible managing employee shall not permit any such person to enter or remain upon such premises.

P. Security deposit facilities capable of being locked by the patron or a security bag that can be carried by the patron shall be available for the protection of the valuables of the patrons.

Q. There shall be a sign at the main entrance to all massage establishments identifying the business. Such sign shall comply with all applicable zoning codes and reasonably conform to the standards of other businesses in that area. Such sign shall not have interior lighting.

(Ord. No. 2018-18, § 2, 5-8-18)

Every massage establishment and off-premises massage service permittee shall keep a client register, approved as to form by the sheriff, of all patrons, with names, addresses, dates and times of all massages, the name of the practitioner administering the service, the type of service, the room or cubicle where such service was performed and the fee paid for such service. Said client register shall at all times during business hours be subject to inspection by the sheriff or any law enforcement officer upon request. This record shall be considered confidential and shall be kept on file for one year.

(Ord. No. 2018-18, § 2, 5-8-18)

The operator of a massage establishment or an off-premises massage service shall maintain a register of all persons employed as massage practitioners and their permit numbers. Said register shall be available for inspection at all times during regular business hours.

(Ord. No. 2018-18, § 2, 5-8-18)

No massage establishment or off-premises massage service granted a permit pursuant to the provisions of this chapter shall operate between the hours of eleven p.m. and seven a.m.

(Ord. No. 2018-18, § 2, 5-8-18)

No person granted a permit pursuant to the provisions of this chapter shall operate under any name not his or her own legal name or conduct his or her business at any location not specified in the permit.

(Ord. No. 2018-18, § 2, 5-8-18)

Every person practicing massage pursuant to the provisions of this chapter shall conspicuously display a badge which shall contain his or her full name as it is specified in his or her permit while rendering such massage services.

(Ord. No. 2018-18, § 2, 5-8-18)

A. Touching of Sexual and Genital Parts of Client During Massage. No holder of a massage establishment permit, massage practitioner, off-premises massage permit or managing employee permit or any other employee of a massage establishment shall place either his/her hands upon, or touch with any part of his/her body, a sexual or genital part of any other person in the course of a massage, or massage a sexual or genital part of any other person, other than massage of female breasts with the written consent of the person receiving the massage and a referral from a licensed California health care provider in accordance with Business and Professions Code 4609(a)(1)(F). Sexual or genital parts shall include the genitals, pubic area, anus or perineum of any person or the vulva or breast of a female.

B. Uncovering and Exposure of Sexual and Genital Parts of Clients Before, During or After Massage. No holder of a massage establishment permit, massage practitioner, managing employee or any other employee of a massage establishment shall uncover and expose the sexual or genital parts, as defined in subsection A of this section, of a client or themselves in the course of performing a massage or other health treatment before or after a massage. This subsection does not prohibit a client from turning over in the course of a massage, so long as the massage practitioner holds a drape over the client to protect his/her privacy.

(Ord. No. 2018-18, § 2, 5-8-18)

Every person practicing massage pursuant to the provisions of this chapter shall display his or her permit issued pursuant to this chapter and his or her CMTC certification in a conspicuous place within the massage establishment so that the permit may be readily seen by persons entering the premises. Persons engaged in an off-premises massage service must have their permit available for inspection at all times while providing off-premises services.

(Ord. No. 2018-18, § 2, 5-8-18)

Every application for a permit hereunder shall be accompanied by a fee in an amount specified by resolution of the Board of Supervisors, no part of which shall be refunded if the application is denied.

(Ord. No. 2018-18, § 2, 5-8-18)

Every holder of a permit required by this chapter shall annually make application for renewal of his or her permit to the sheriff's department. The annual renewal application shall require an update on any and all information set forth on the application for the massage practitioner permit filed by the applicant and be accompanied by the annual renewal fee. The application shall be accepted only upon payment of the renewal fee. If the permittee fails to deliver, fails to provide the updated information, or fails to pay the renewal fee within thirty (30) days following the annual anniversary date of the massage practitioner permit, then the underlying permit shall be null and void and shall be revoked by operation of the terms of this section. If the permittee, after compliance with the requirements of this section, has not received an interpretive response within sixty (60) days following the annual anniversary date of the permit, such permit shall be considered renewed.

(Ord. No. 2018-18, § 2, 5-8-18)

The sheriff shall from time to time and at least once a year, make an inspection of each massage establishment in the unincorporated territory of the county for the purpose of determining that the provisions of this chapter are complied with. If, during an inspection, a violation of this chapter is observed, the sheriff shall either advise the permittee or employee in charge if the violation is such that it can be corrected at that time or serve the permittee or employee in charge written notice of the violation. When written notice is given the permittee shall correct the violation within thirty (30) days.

(Ord. No. 2018-18, § 2, 5-8-18)

The sheriff shall have the right to establish additional operating requirements as needed to insure compliance with this chapter and the laws of the State of California.

(Ord. No. 2018-18, § 2, 5-8-18)

It is unlawful for a massage establishment to employ as a massage practitioner a person who does not have a valid permit issued pursuant to the provisions of this chapter.

(Ord. No. 2018-18, § 2, 5-8-18)

The provisions of this chapter shall be applicable to persons now engaged in the business regulated in this chapter. Existing businesses of the kind referred to in this chapter shall conform with all provisions contained herein within ninety (90) days of the effective date of this section. All practitioners licensed before the effective date of this chapter shall meet all requirements within one year.

(Ord. No. 2018-18, § 2, 5-8-18)

All applicants for permits required by this chapter shall apply for and pay a business license tax to the Alameda County treasurer/tax collector in accordance with Chapter 3.04, Section 3.04.030.

(Ord. No. 2018-18, § 2, 5-8-18)

Any violation of any of the provisions of this chapter is a misdemeanor and is punishable by a fine not to exceed five hundred dollars ($500.00) or by imprisonment in the county jail for a period not to exceed six months, or both.

(Ord. No. 2018-18, § 2, 5-8-18)

The sheriff may revoke a permit for any violation of the provisions of this chapter or of any applicable law or regulation, or for any false, misleading or fraudulent statement of a material fact in the application for the permit.

(Ord. No. 2018-18, § 2, 5-8-18)

If the sheriff determines that a permit should be revoked, he shall serve on the permittee a notice of his intent with his reasons therefor. The notice shall provide for revocation of the permit seven days after service of the notice upon the permittee, unless the permittee requests a hearing before the sheriff or his agent prior to revocation. The notice may contain a statement that the permit is immediately suspended and such suspension shall remain in effect during the pendency of the revocation and appeal procedures. The sheriff shall give the permittee at least five days' prior written notice of the time and place of the hearing which shall be held within fourteen (14) days of the receipt by the sheriff of the request therefor, and shall issue his written decision within seven days after the conclusion of the hearing.

(Ord. No. 2018-18, § 2, 5-8-18)

The applicant or the aggrieved party, including but not limited to, any county officer, department, board or commission affected by the permit shall have the right to appeal any action of the sheriff in granting or denying an application for a permit, or revoking a permit to the Board of Supervisors. The appeal shall be made in writing, specifying the grounds therefor, and filed with the clerk of the Board of Supervisors within ten days after the action of the sheriff. The Board of Supervisors may hear additional evidence and may sustain, reverse, or modify the decision of the sheriff. The decision of the board shall be final.

(Ord. No. 2018-18, § 2, 5-8-18)

If the Board of Supervisors finds that strict compliance with the provisions of this chapter will result in an arbitrary or unreasonable taking of property or in the practical elimination of any lawful business, occupation or activity, in either case, it may prescribe other and different requirements consistent with protection of the public health, safety and welfare. In determining under what conditions and to what extent a variance from the requirements of this chapter is necessary and will be permitted, the Board of Supervisors shall exercise a wide discretion in weighing the equities involved and the advantages and disadvantages of the residents of the county and to lawful business, occupation or activity involved, resulting from requiring compliance with said requirements or resulting from the granting of a variance.

(Ord. No. 2018-18, § 2, 5-8-18)