Banning Municipal Code Ch. 5.74 Massage Establishments and Massage Therapists/Practitioners

The purpose of this chapter is:

To regulate massage establishments, massage therapists, and massage practitioners, to protect the public health, safety, and welfare of the citizens of the city and to comply with Sections 4600 - 4620 of the California Business and Professions Code.

To discourage the use of massage therapy as an unlawful activity or an activity that violates subdivision (a) and (b) of Section 647 of the California Penal Code.

To ensure that compliance with the provisions of this chapter is not to be exclusive and compliance therewith shall not excuse noncompliance with any state and local laws or regulations that are uniformly applied to other professional or personal services businesses, including, but not limited to, all zoning regulations, business license provisions, building codes, fire codes, electrical codes, plumbing codes, and regulations applicable to professional and personal services.

(Ord. No. 1426, § 4, 9-14-10)

[The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:]

Massage. The term "massage" shall mean any method of applying pressure on, or friction against or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating the external parts of the human body with the hands or with the aid of any mechanical or electrical apparatus or appliance, or with or without supplementary aids such as rubbing alcohol, liniment, antiseptic, oil, powder, cream, ointment, or other similar preparations commonly used in this practice.

Massage establishment. The term "massage establishment" shall mean any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, or combination of individuals, engages in, conducts, carries on or permits to be engaged in, conducted or carried on, massages, baths or health treatments involving massage or baths.

Massage practitioner. The term "massage practitioner" means a person who is certified by the Massage Therapy Organization under subdivision (b) of Business and Professions Code Section 4601 and who administers massage for compensation.

Massage therapist. The term "massage therapist" means a person who is certified by the Massage Therapy Organization under subdivision (c) of Business and Professions Code Section 4601 and who administers massage for compensation.

Massage Therapy Organization (MTO). The term "massage therapy organization" or "MTO" shall mean the organization created pursuant to Chapter 10.5 of Division 2 of the Business and Professions Code.

Operator. The term "operator" shall mean the individual who manages the massage establishment. Evidence of management includes, but is not limited to, evidence that the individual has power to direct or hire and dismiss employees, control hours of operation, create policy or rules or purchase supplies. An operator may also be an owner.

Owner. The term "owner" shall mean the individual(s) whose name(s) appears on the City of Banning business license.

(Ord. No. 1426, § 4, 9-14-10)

It is unlawful for any person, association, partnership, corporation or other entity to engage in, conduct or carry on, permit to engage in, in or upon any premises within the City of Banning, the business of providing massage in exchange for compensation without being currently certified as a massage practitioner or massage therapist by the MTO in accordance with Sections 4600 through 4620 of the California Business and Professions Code. For all persons currently performing massage in the city, certification by the MTO must be obtained within one hundred twenty days from passage of the ordinance. It is unlawful for any owner or operator to employ or permit a person to act as a massage practitioner or massage therapist, as defined in this chapter, within the city, who is not in possession of a valid, unrevoked massage therapist or massage practitioner license issued by the MTO.

(Ord. No. 1426, § 4, 9-14-10)

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, or physical therapists who are duly licensed to practice their respective professions in the State of California;

B. Nurses who are registered as such under the laws of the State of California;

C. Barbers, beauticians and cosmetologists, with respect to above-the-shoulder massage, including scalp, neck and shoulder massage, who are duly licensed under the laws of the State of California, in accordance with the limitations of their licenses;

D. Acupuncturists who are duly certified to practice their profession in the State of California.

(Ord. No. 1426, § 4, 9-14-10)

Any person to whom an MTO certification is granted shall display such certification prominently in a conspicuous place, capable of being viewed by customers, at every location where the licensed activities are performed or conducted.

(Ord. No. 1426, § 4, 9-14-10)

A. No unlicensed massage practitioner or massage therapists. Massage establishments, owners, and operators shall only permit persons certified by the MTO to perform massage in a massage establishment.

B. Notices to the city. The owner or operator of each massage establishment shall provide the community development director, or his or her designee, in writing, of the following for each massage practitioner or massage therapist whose services are utilized by the massage establishment (1) within five days of the hiring and/or commencement of services, whichever is first, and (2) within five days of the termination of employment or discontinuation of services:

1. The name.

2. MTO certification number.

3. Date of hiring or termination date.

4. Location of each massage establishment where employed.

5. True and correct copy of the MTO certification.

6. Color photograph of the certificate holder.

A. Any person, association, corporation, partnership or other entity desiring to operate a massage establishment or provide massage services shall apply for and obtain a business license from the city and provide the following relevant information:

1. Full name of license holder.

2. Date of birth.

3. State issued identification number.

4. Social Security Number.

5. Home address and phone number.

6. Work address and phone number.

7. Color photograph of the certificate holder.

8. True and correct copy of MTO certification for those who will provide massage services.

B. Any person, association, corporation, partnership or other entity applying for or renewing a business license for the operation of a massage establishment, must schedule and complete an inspection of the massage establishment premises with the community development director or his/her designee. No business license shall be granted or renewed until such inspection has been completed and the massage establishment is found to be in compliance with the city's Code.

(Ord. No. 1426, § 4, 9-14-10)

A. Operating requirements. No license to operate a massage establishment shall be issued nor may any massage establishment operate unless the massage establishment premises and operation comply with each of the following minimum requirements:

1. Signage. A legible sign shall be posted at the main entrance identifying the establishment as a massage establishment and all such signs shall otherwise comply with the sign requirements of the city's zoning ordinance.

2. Disinfection of instruments. Instruments used for massage shall be disinfected prior to each use. Where such instruments for massage are employed, adequate quantities of supplies for disinfection shall be available during all hours of operation.

3. Linen storage. Cabinets shall be utilized for the storage of clean towels and linen. After use, towels and linen shall be removed from the room or booth and stored in a clean container until laundered.

4. Dressing and toilet facilities. Dressing and toilet facilities shall be provided for patrons.

5. Sanitary conditions. All walls, ceilings, floors, steam and vapor rooms, and all other physical facilities for the massage establishment shall be kept in good repair, and maintained in a clean and sanitary condition.

6. Clean linen. Clean and sanitary towels and linens shall be provided for patrons receiving massage services. Towels and linens shall not be used on more than one patron unless they have first been laundered and disinfected. Disposable towels and coverings shall not be used on more than one patron.

7. Massage practitioner and massage therapist dress code. All persons employed to work on the massage establishment premises, and including all massage practitioners and massage therapists conducting licensed activities on the massage establishment premises, shall be dressed in clothing made of an opaque material, and at a minimum, shall not expose any specified anatomical areas, as defined in section 5.84.020, and shall comply with the following requirements, as applicable:

a. Upper Garments. All garments covering the upper torso (e.g., shirts or dresses) shall have sleeves not less than two inches in length, measuring from the top of the shoulder, and necklines not lower than two inches below the clavicle.

b. Skirts. Hems of dresses, skirts, smocks, or other similar garments shall not be more than two inches above the top of the knee.

c. Shorts. Cuffs or hems of shorts, culottes, pants or other similar garments shall not be more than six inches above the top of the knee.

8. Compliance with laws. The premises to be used shall at all times comply with city, state, and federal laws.

(Ord. No. 1426, § 4, 9-14-10)

A. Prohibited conduct. No massage practitioners or massage therapists and/or any other employee working in a massage establishment, or the massage establishment's customers, patrons, or guests shall engage in any specified sexual activities, as defined in section 5.84.020, upon the premises of the massage establishment. No massage practitioner or massage therapist and/or other employee of a massage establishment may expose specified anatomical areas, as defined in section 5.84.020, in the presence of any patron, customer, or guests. In the course of administering massage, no massage practitioner or massage therapist and/or other massage establishment employee may make intentional physical contact with the specified anatomical areas of any customer, patron, or guests.

B. Draping. No massage establishment shall allow massage practitioners or massage therapists and/or any other employees working in a massage establishment to administer any form of massage or come into any form of physical contact with a customer who is either fully or partially undressed, without first draping the customer's specified anatomical areas, as defined in section 5.84.020, if such areas would otherwise be exposed, in accordance with the accepted standards of the American Massage Therapy Association and/or Associated Professional Massage Therapists and Allied Health Practitioners.

(Ord. No. 1426, § 4, 9-14-10)

Officers of the police department, or employees of the planning division, building and safety division, code enforcement division and the fire department shall have the right to enter any massage establishment during regular business hours to make reasonable inspection to ascertain whether the provisions of this chapter are being met, provided reasonable and normal business operations shall not be interfered with.

(Ord. No. 1426, § 4, 9-14-10)

Any massage establishment operated, conducted or maintained contrary to the provisions of this chapter shall be, and is declared to be unlawful and a public nuisance. Any violation of this chapter is subject to any and all remedies available to the city, including but not limited to, a civil action brought by the city attorney for injunctive relief, administrative or judicial nuisance abatement proceedings, criminal code enforcement proceedings, and/or civil and criminal penalties as provided by law.

(Ord. No. 1426, § 4, 9-14-10)