Chapter 5.56 — MASSAGE THERAPY REGULATIONS

Footnotes:

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Editor's note— Ord. No. 617, § 1(Exh. A), adopted Dec. 8, 2009, repealed and replaced the former Ch. 5.56, §§ 5.56.010—5.56.240, and enacted a new Ch. 5.56 as set out herein. The former Ch. 5.56 pertained to massage establishments and derived from Prior code §§ 5-11.01—5.11.25.

Except where a specific exemption is applicable pursuant to Section 5.56.030, it is a violation of this chapter for:

A.

Any person to engage in the practice of massage therapy, and any massage business or establishment to employ or retain such a person, unless such person first obtains and continues to maintain in full force and effect a valid CAMTC certificate.

B.

Notwithstanding subsection A of this section, valid massage permits for the year 2009 that would otherwise have expired on December 31, 2009 that were issued by the city pursuant to the prior chapter of this Code regulating massage establishments, shall be deemed valid and shall be extended for a period of sixty (60) days from the effective date of this chapter. Holders of such city issued massage permits shall be permitted to continue to practice pursuant to the city issued permit, and subject to the provisions of this chapter, provided that he or she files for and diligently pursues obtaining a CAMTC certificate. The police chief or his/her designee may extend the period of time that a city massage permit is valid if it is deemed reasonably necessary to allow a permittee additional time to secure a CAMTC certificate.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

A.

"CAMTC certificate" shall mean the certificate issued by the massage therapy organization to massage therapists pursuant to subdivision (c) of Section 4601 of the California Business and Professions Code, and to massage practitioners pursuant to subdivision (b) of Section 4601 of the California Business and Professions Code or subdivision (a) or (c) of Section 4604 of the California Business and Professions Code.

B.

"City" shall mean the City of Arroyo Grande.

C.

"Compensation" shall mean the payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value.

D.

"Employed or retained by" shall include:

1.

Any person who is a directly paid employee of a massage business or establishment;

2.

Any person whose association with a massage business or establishment is that of an independent contractor who receives compensation for massage therapy provided to patrons of the business or establishment; and

3.

Any person who receives a referral of patrons from a massage business or establishment and who at any time before or after the referral arranges in any way for compensation to flow to the massage business or establishment or any of its owners (regardless of whether the parties involved acknowledge that compensation is flowing in exchange for the referral, or such parties record such compensation in their financial records).

E.

"License" or "permit" shall mean the authorization issued by the city allowing the practice of massage therapy. Also known as a massage permit.

F.

"Licensee" shall mean a person to whom a massage permit has been issued.

G.

"Massage, massage therapy, and bodywork" are used in this chapter interchangeably and shall mean the application of various techniques to the muscular structure and soft tissues of the human body, including, but not limited to, any method of pressure or friction against, or stroking, kneading, rubbing, tapping, compression, pounding, vibrating, rocking or stimulating of the external surfaces of the body with hands or with any object or appliance. The terms "massage," "massage therapy," and "bodywork" specifically exclude the diagnosis, prescription, intentional manipulation or adjustments of the skeletal structure, or any other service, procedure or therapy which requires a license to practice (e.g., chiropractic, osteopathy, orthopedics, physical therapy, podiatry, or medicine), hypnosis, naturopathic, colonic irrigation, acupuncture, vacuum cupping, nutritional or dietary counseling, detoxification

programs, yoga, exercise, spiritual healing, or procedures which penetrate body cavities, either manually or with any other method of intrusion.

H.

"Massage business or establishment" shall mean any business or establishment which offers massage therapy in exchange for compensation, whether at a fixed place of business or at a location designated by the patron. Any business or establishment which offers any combination of massage therapy and bath facilities, including, but not limited to, showers, baths, wet and dry heat rooms, pools and hot tubs, shall be deemed a massage business or establishment under this chapter.

I.

"Massage practitioner" shall mean any person to whom a CAMTC certificate has been issued pursuant to subdivision (b) of Section 4601 of the California Business and Professions Code, or subdivision (a) or (c) of Section 4604 of the California Business and Professions Code, and who is engaged in the practice of massage therapy for compensation. As used in this chapter, the terms "bodywork practitioner" or "massage and bodywork practitioner" shall have the same meaning as "massage practitioner."

J.

"Massage therapist" shall mean any person to whom a CAMTC certificate has been issued pursuant to subdivision (c) of Section 4601 of the California Business and Professions Code and who is engaged in the practice of massage therapy for compensation. As used in this chapter, the terms "bodyworker," "bodywork therapist," or "massage and bodywork therapist" shall have the same meaning as "massage therapist."

K.

"Operator" shall mean any person who supervises, manages, directs, organizes, controls or in any other way is responsible for or in charge of the overall operation, conduct or activities of a massage business or establishment.

L.

"Owner" shall mean any of the following persons:

1.

The sole proprietor of a massage business or establishment. As used in this chapter, the term "sole proprietor" shall mean a massage business or establishment where the owner is the only person employed by that business or establishment to provide massage therapy;

2.

Any general partner of a partnership that owns and operates a massage business or establishment; or

3.

Any person who has a twenty (20) percent or greater ownership interest in a corporation that owns and operates a massage business or establishment.

M.

"Person" shall mean any individual, proprietorship, partnership, corporation, firm, association, joint stock company, or combination of the above in whatever form or character.

N.

"Police chief" shall mean the police chief of the City of Arroyo Grande or his or her authorized representative(s).

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

This chapter shall not apply to:

A.

Persons holding a valid certificate to practice the healing arts under the laws of the State of California and their employees, including, but not limited to, holders of medical degrees such as physicians, surgeons, chiropractors, osteopaths, naturopaths, podiatrists, acupuncturists, physical therapists, registered nurses and licensed vocational nurses;

B.

State-licensed hospitals, nursing homes, sanitariums, physiotherapy establishments, or other state-licensed physical or mental health facilities and their employees;

C.

Recognized schools of massage and their students in training, provided such students provide massage therapy only under the direct personal supervision of an instructor;

D.

Barbers and cosmetologists who are licensed under the laws of the State of California while providing massage therapy within the scope of their licenses; provided, that such massage therapy is limited solely to the neck, face, scalp, feet and lower limbs up to the knees, and hands and arms, of their patrons;

E.

Persons who provide massage therapy to amateur, semi-professional or professional athletes or athletic teams, facilities or events, so long as such persons do not practice massage therapy as their primary occupation within city limits;

F.

Persons who hold a valid CAMTC certificate who are practicing consistent with the qualifications established by such certificate and whose practice, as such, may not be regulated by the city other than the requirement for possession of a business license; and

G.

Massage businesses or establishments as defined under paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, except that such businesses or establishments shall not be exempt from this chapter to the extent Section 4612 expressly permits the regulation of such businesses or establishments by local ordinance.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

A.

Every nonexempt massage business or establishment and every massage business or establishment as defined under paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, shall:

1.

Provide the police department with a copy or other evidence of the massage therapy license or CAMTC certificate of every person who is employed or retained by the business or establishment to provide massage therapy, within thirty (30) calendar days of the commencement of such person's period of employment;

2.

Maintain on its premises a copy or other evidence of each such massage therapy license or CAMTC certificate for review by the police department; and

3.

Notify the police chief of any intention to rename, change management, or convey the business or establishment to another person.

B.

Every licensee shall notify the police chief of a change in the licensee's home address, and the address of the massage business or establishment where the licensee is regularly employed or retained to provide massage therapy, within thirty (30) days of such change.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

No licensee, whether such license is issued through the CAMTC certification process or the city application process, and no nonexempt massage business or establishment, or massage business or establishment described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, shall provide massage therapy to the public for compensation between the hours of ten p.m. and seven a.m. of the following day.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

A.

It is a violation of this chapter for any person who does not possess a valid CAMTC certificate or a valid city massage permit, and for any massage business or establishment that employs or retains such a person, to:

1.

State or advertise or put out any sign or card or other device, or to represent to the public through any print or electronic media, that such person is certified, registered or licensed by a governmental agency as a massage therapist or massage practitioner; or

2.

Hold oneself out or use the title of "certified massage therapist," "certified massage practitioner," or any other term, such as "licensed," "registered," or "CMT," that implies or suggests that such person is the holder of a CAMTC

certificate.

B.

It is a violation of this chapter for any massage business or establishment, licensee, or any other person providing massage therapy to the public for compensation, to advertise through any print or electronic media that is classified for adults only or similar classification.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

It shall be unlawful for any nonexempt massage business or establishment, and for any massage business or establishment described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code, to:

A.

Employ or retain any person who is under the age of eighteen (18) years to provide any massage therapy to the public for compensation; or

B.

Provide massage therapy to any person who is under the age of eighteen (18) years, except at the special instance and request of a parent or other person in lawful custody of the minor.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

The following physical facility and building code requirements shall be applicable to all nonexempt massage businesses or establishments, and to all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code:

A.

Except when there is no staff available to assure security for massage therapy patrons and staff who are behind closed doors, no massage therapy may be carried on behind locked closed doors.

B.

All doors to dressing rooms, toilet rooms and massage therapy rooms or cubicles shall open inward and shall be selfclosing. Draw drapes, curtain enclosures, or accordion-pleated closures in lieu of doors are acceptable on all inner dressing rooms and massage therapy rooms or cubicles.

C.

Minimum lighting equivalent to at least one 40-watt light shall be provided in each massage therapy room or cubicle.

D.

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. The tables should have a minimum height of eighteen (18) inches. Beds, floor mattresses and waterbeds are not permitted on the premises of the business or establishment.

E.

All locker facilities that are provided for the use of patrons shall be fully secured for the protection of the patron's valuables, and the patron shall be given control of the key or other means of access.

F.

The business or establishment shall comply with all applicable state codes as established in the California Code of Regulations and adopted by the city including, but not limited to, a system of adequate ventilation, a supply of hot and cold running water, a supply of potable drinking water, hand washing facilities and public toilet rooms.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

The following health and safety requirements shall be applicable to all nonexempt massage businesses or establishments, and to all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code:

A.

The business or 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 once been used it shall be deposited in a closed receptacle and not used until properly laundered and sanitized. Towels, coverings and linens shall be laundered either by regular commercial laundering or by a noncommercial laundering process which 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.

B.

All massage therapy rooms or cubicles, wet and dry heat rooms, toilet rooms, shower compartments, and hot tubs and pools shall be thoroughly cleaned and disinfected as needed, and at least once each business day the premises are open and such facilities are in use. All bathtubs shall be thoroughly cleaned and disinfected after each use.

C.

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.

D.

No invasive procedures shall be performed on any patron. Invasive procedures include, but are not limited to: (1) application of electricity which contracts the muscle; (2) application of topical lotions, creams, or other substances which affect living tissue, such as chemical peel preparations or bleaches; (3) penetration of the skin by metal needles; (4) abrasion of the skin below the nonliving, epidermal layers; (5) removal of skin by means of any razoredged instrument or other device or tool; and (6) any needle-like instrument which is used for the purpose of extracting skin blemishes and other similar procedures.

E.

All bathrobes, bathing suits and/or other garments that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be laundered after each use pursuant to subsection A of this section.

F.

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 shall not be used by more than one patron, or shall be fully disinfected after each use.

G.

No patrons shall be allowed to use any shower facilities of the business or establishment unless such patrons are wearing slip-resistant sandals or flip-flops while in the shower compartment. All footwear such as sandals or flip-flops that are provided for the use of patrons shall be either fully disposable and shall not be used by more than one patron, or shall be fully disinfected after each use.

H.

The patron's genitals, pubic area, anus, and female patron's breasts below a point immediately above the top of the areola must be fully draped at all times while any employee of the business or 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, anus, or areola of a patron.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

The following attire and physical hygiene requirements shall be applicable to all licensees, and to all massage therapists and massage practitioners who are employed or retained by a nonexempt massage business or establishment, or by a massage business or establishment described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code:

A.

All persons shall be clean and wear clean and sanitary outer garments at all times. All outer garments shall be of a fully opaque, nontransparent material and provide complete covering from at least the mid-thigh to two inches below the collarbone. The midriff may not be exposed.

B.

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, cut) or where a skin infection or eruption is present.

C.

No person afflicted with an infection or parasitic infestation capable of being transmitted to a patron shall knowingly provide massage therapy to a patron, or remain on the premises of a massage business or establishment while so infected or infested. Infections or parasitic infestations capable of being transmitted to a patron include, but are not limited to: (1) cold, influenza or other respiratory illness accompanied by a fever, until twenty-four (24) hours after resolution of the fever; (2) streptococcal pharyngitis ("strep throat"), until twenty-four (24) hours after treatment has been initiated and twenty-four (24) hours after resolution of fever; (3) purulent conjunctivitis ("pink eye"), until examined by a physician and approved for return to work; (4) pertussis ("whooping cough"), until five days of

antibiotic therapy has been completed; (5) varicella ("chicken pox"), until the sixth day after onset of rash or sooner if all lesions have dried and crusted; (6) mumps, until nine days after onset of parotid gland swelling; (7) tuberculosis, until a physician or local health department authority states that the person is noninfectious; (8) impetigo (bacterial skin infection), until twenty-four (24) hours after treatment has begun; (9) pediculosis (head lice), until the morning after first treatment; and (10) scabies ("crabs"), until after treatment has been completed. Blood-borne diseases, such as HIV/AIDS and hepatitis B (HBV), shall not be considered infectious or communicable diseases for the purpose of this subsection.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

A.

All nonexempt massage businesses or establishments, and all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612, shall permit representatives of the San Luis Obispo County Health Department, the Arroyo Grande Police Department, the Arroyo Grande Fire Department, the Arroyo Grande Community Development Department, and/or other city or county departments or agencies, to conduct a reasonable inspection of the public areas of, and areas otherwise open to plain view on or within the premises, to the extent allowed by law and during the regular business hours of the business or establishment, for the purpose of ensuring compliance with state and local law, including, but not limited to, Chapter 10.5 (commencing with Section 4600) of the California Business and Professions Code, the requirements of this chapter, or other applicable fire and health and safety requirements.

B.

Nothing in this section shall be deemed to prohibit the above-described government officials from pursuing any and all available legal remedies to secure entry into and inspection of the premises of the business or establishment if such entry is refused, or for any other reason allowed by law.

C.

It is a violation of this chapter for the business or establishment to prohibit or interfere with such lawful inspection of the premises at any time it is open for business.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

The following provisions shall apply to all nonexempt massage businesses or establishments, and all massage businesses or establishments described in paragraph (1) of subdivision (b) of Section 4612 of the California Business and Professions Code:

A.

For the purpose of enforcement of the requirements of this chapter, all owners and operators of the business or establishment shall be responsible for the conduct of all of its employees, agents, independent contractors or other representatives, while on the premises of the business or establishment or providing massage therapy.

B.

Notwithstanding Section 5.02.010, the city may:

Require the business or establishment in its application for a business license, or for the renewal of a business license, to provide information relevant to the activities of the business or establishment regulated by this chapter;

2.

Make reasonable investigations into the information so provided;

3.

Charge a business licensing fee sufficient to cover the costs of the business licensing activities regulated by this chapter; and

4.

Deny, revoke, restrict or suspend a business license for either of the following causes: (a) an employee, agent, independent contractor or other representative of the business or establishment has committed a violation of this chapter, or of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business or Professions Code; or (b) the business or establishment has provided materially false information in its application for a business license.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

Any person subject to this chapter who personally, or through an agent, employee, independent contractor or other representative, violates any provision of this chapter shall be guilty of a separate offense for each and every day during any portion of which any such violation is committed, continued or permitted by such person. All remedies provided herein shall be cumulative and not exclusive.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

Any use or condition caused or permitted to exist in violation of any of the provisions of this chapter shall be and is hereby declared a public nuisance and, as such, may be abated or enjoined from further operation.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

Any person subject to this chapter who personally, or through an agent, employee, independent contractor or other representative, violates any provision of this chapter commits a misdemeanor. Any person convicted of a misdemeanor shall be subject to punishment by fine and/or imprisonment to the maximum extent permitted by state law.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)

The violation of any provision of this chapter shall be and is hereby declared to be contrary to the public interest and shall, at the discretion of the city, create a cause for injunctive relief.

(Ord. No. 617, § 1(Exh. A), 12-8-2009)