Berkeley Municipal Code Ch. 9.32 Massage Therapy

It is the purpose and intent of this Chapter to provide that all persons engaged in the practice of Massage Therapy in the City of Berkeley shall possess either a valid California Massage Therapy Council (CAMTC) certification or a valid Massage Therapy Permit and that all massage establishments that employ persons who possess a valid massage therapy permit also possess a valid Massage Establishment Permit. These procedures and regulations are declared necessary to preserve and protect the health, safety and general welfare of the residents of the City. (Ord. 7214-NS § 1, 2011; Ord. 7106-NS § 1 (part), 2009)

A. "Bona fide massage therapy school" means an institution, school, or training center providing a course of training in bodywork, healing arts, massage, or touch therapy and issuing a diploma or certificate upon completion of at least five hundred (500) hours of classroom instruction.

B. "City" means the City of Berkeley.

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

D. "Massage," "Massage Therapy" and "Bodywork" are used in the Chapter interchangeably and mean any method of 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 other parts of the body or with the aid of any mechanical or electrical apparatus, or other appliances or devices. Massage includes, but is not limited to, shiatsu, acupressure or similar activities.

E. "Massage Establishment" means any business or establishment at a fixed place of business at which Massage Therapy is offered in exchange for compensation. 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 Establishment under this Chapter.

F. "CAMTC Certificate" means a certificate issued to Massage Therapists and Massage Practitioners as those terms are used in Sections 4601 and 4604 of the California Business and Professions Code.

G. "Operator" means 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 Establishment.

H. "Owner" means any of the following persons: the sole proprietor of a Massage Establishment, any general partner of a partnership that owns and operates a Massage Establishment or any person with a five-percent (5%) or greater ownership interest in a corporation that owns and operates a Massage Establishment.

I. "Person" means any individual, proprietorship, partnership, firm, association, joint stock company, corporation or combination of individuals of whatever form or character. (Ord. 7283-NS § 1, 2013; Ord. 7214-NS § 2, 2011; Ord. 7106-NS § 1 (part), 2009)

It shall be unlawful for any individual to provide Massage Therapy in exchange for compensation within the City without first obtaining either a valid CAMTC certificate or a Massage Therapy Permit except for the following individuals:

A. Any individual licensed to practice the art of healing as defined under Division 2 of the California Business and Professions Code beginning at Section 500 while engaging in a practice within the scope of their license.

B. Any employee of a California state-licensed hospital, nursing home, sanitarium or other state-licensed physical or mental health facility while engaging in a practice within the scope of their employment.

C. Any employee of an Approved Massage School as that term is defined in Section 4600 of the California Business and Professions Code while engaging in a practice within the scope of their employment.

D. Any person licensed to practice barbering or cosmetology as defined at Division 3, Chapter 10 beginning at Section 7300 of the California Business and Professions Code while engaging in a practice within the scope of their license. (Ord. 7214-NS § 3, 2011; Ord. 7106-NS § 1 (part), 2009)

An applicant for a massage therapy permit shall file an application with the Revenue Collections Division of the Department of Finance upon a form to be provided by said department and pay a filing fee which shall be nonrefundable. The application shall specify the nature of the services to be provided and the name and address of the applicant. The application shall include a copy of a diploma or certificate issued to the applicant by a bona fide massage therapy school, as well as the address and telephone number of that bona fide massage therapy school. The applicant may provide additional documentation showing training and certification in bodywork, healing arts, massage, or touch therapy.

If any changes occur which result in changes to the information provided on an application required pursuant to this section, the holder of a permit must submit an updated application within fifteen (15) days from the date of such changes. (Ord. 7106-NS § 1 (part), 2009)

The Berkeley Police Department shall investigate the criminal history of the applicant. A massage therapy permit will not be issued if the applicant has been convicted of any of the following offenses or convicted of an offense outside the State of California that would have constituted any of the following offenses if committed within the State of California:

A. An offense involving conduct which requires registration pursuant to Section 290 of the Penal Code;

B. An offense involving the use of force and violence upon the person of another that amounts to a felony;

C. An offense involving sexual misconduct with children;

D. An offense charged under Chapter 7.5 of Title 9 of the Penal Code;

E. An offense charged under Section 266i, 647(a), 647(b), 315, 316 or 318 of the Penal Code. (Ord. 7106-NS § 1 (part), 2009)

It is unlawful for any person to operate a Massage Establishment in the City without first having obtained a permit to operate such pursuant to this Chapter. Every applicant for a Massage Establishment permit shall file an application with the Department of Finance upon a form to be provided by said Department and pay a filing fee which shall be non-refundable. The following entities are exempt from filing for permits for a Massage Establishment:

A. Any California state-licensed hospitals, nursing homes, sanitariums or other state-licensed physical or mental health facilities.

B. Any Approved Massage Schools as that term is defined in Section 4600 of the California Business and Professions Code.

C. Any Massage Establishment which employs or retains only individuals who possess valid CAMTC certifications to provide Massage Therapy in exchange for compensation at that Establishment as long as all of the following requirements are met:

1. Such Establishment provides copies or other evidence of the certificates held by all individuals employed or retained by it to the City in accordance with paragraph (2)(B) of subsection (b) of Section 4612 of the California Business and Professions Code; and

2. Any Owner of such Establishment who does not possess a valid CAMTC certificate completes a criminal background check pursuant to Section 9.32.080 in accordance with subsection (e) of Section 4612 of the California Business and Professions Code; and

3. Any Owner or Operator notifies the City in writing of any intention to rename, change management or convey such Establishment to another person in accordance with paragraph (2) of subsection (d) of Section 4612 of the California Business and Professions Code; and

4. Such Establishment is in compliance with the requirements of this Chapter and the provisions of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code in accordance with subsection (c) of Section 4612 of the California Business and Professions Code.

D. A location at which only Chair Massage as defined in Section 23F.04.010 is offered shall not require a Massage Establishment permit solely on the basis that Chair Massage is offered. (Ord. 7283-NS § 2, 2013; Ord. 7214-NS § 4, 2011; Ord. 7106-NS § 1 (part), 2009)

Where a massage establishment employs or retains individuals who do not possess valid CAMTC certifications to provide massage therapy in exchange for compensation, such application shall specify the nature of the massage therapy service available, the hours of operation, the name and address of the establishment, the name and address of the owner(s) and operator(s) of the establishment and the name and mailing address of the applicant. The application shall also include a copy of either a valid CAMTC certificate or a massage therapy permit held by each person who is employed or retained by the establishment to provide massage therapy in exchange for compensation within thirty (30) calendar days of the commencement of such person’s employment.

If an owner, operator, or holder of a permit issued under this section makes any changes to the massage establishment which result in changes to the information provided on an application required pursuant to this section, said person must submit an updated application within fifteen (15) days from the date of such changes. (Ord. 7214-NS § 5, 2011; Ord. 7106-NS § 1 (part), 2009. Formerly 9.32.080)

Where an applicant(s) submits an application for a Massage Establishment Permit pursuant to Section 9.32.070, the Berkeley Police Department shall investigate the criminal history of each of the Owner(s) and Operator(s) of the Establishment except when the Owner(s) and Operator(s) possess either a valid CAMTC certificate or Massage Therapy Permit. A Massage Establishment Permit will not be issued pursuant to Section 9.32.070 if any of the Owner(s) and Operator(s) have been convicted of any of the following offenses or convicted of an offense outside the State of California that would have constituted any of the following offenses if committed within the State of California:

A. An offense involving conduct which requires registration pursuant to Section 290 of the Penal Code;

B. An offense involving the use of force and violence upon the person of another that amounts to a felony;

C. An offense involving sexual misconduct with children;

D. An offense charged under Chapter 7.5 of Title 9 of the Penal Code;

E. An offense charged under Section 266i, 647(a), 647(b), 315, 316 or 318 of the Penal Code. (Ord. 7214-NS § 6, 2011; Ord. 7106-NS § 1 (part), 2009. Formerly 9.32.090)

The Department of Finance will begin review of an application upon completion. It will conclude review of the application and issue a decision within thirty (30) days of submission of a completed application. A permit application may be denied when:

A. The applicant has provided false information;

B. A permit issued to the applicant was revoked pursuant to Section 9.32.140;

C. A Zoning Certificate, Administrative Use Permit, Use Permit or Variance issued to the applicant to operate a massage establishment was revoked or deemed null and void pursuant to Title 23; or

D. The applicant relinquished a permit issued pursuant to this Chapter or Title 23 to operate a massage establishment after the City initiated enforcement proceedings. (Ord. 7238-NS § 1, 2012; Ord. 7214-NS § 7, 2011; Ord. 7106-NS § 1 (part), 2009. Formerly 9.32.100)

A permit issued under provisions of this chapter shall be nontransferable and shall be valid only for two years from the date of issuance. (Ord. 7214-NS § 8, 2011; Ord. 7106-NS § 1 (part), 2009. Formerly 9.32.110)

Sixty (60) days prior to the date of expiration of any permit issued pursuant to this Chapter, the permittee shall apply to renew the permit. The permittee shall apply for renewal of a permit in the manner provided in Sections 9.32.040, 9.32.050, 9.32.070 and 9.32.080 as applicable. (Ord. 7214-NS § 9, 2011; Ord. 7106-NS § 1 (part), 2009. Formerly 9.32.120)

A Massage Establishment permitted pursuant to this Chapter shall maintain on its premises evidence demonstrating that all persons providing Massage Therapy in exchange for compensation at such Establishment have obtained either a valid CAMTC certificate or a Massage Therapy Permit and that the Establishment has obtained a Massage Establishment Permit for review by City authorities. (Ord. 7214-NS § 10, 2011; Ord. 7106-NS § 1 (part), 2009. Formerly 9.32.130)

In accordance with paragraph (1) of subsection (d) of Section 4612 of the California Business and Professions Code, a Massage Establishment shall be subject to reasonable inspections during regular business hours for the purpose of ensuring compliance with this Chapter, Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code and applicable building, fire, electrical, plumbing or health regulations. A warrant shall be obtained whenever required by law. (Ord. 7214-NS § 11, 2011; Ord. 7106-NS § 1 (part), 2009. Formerly 9.32.140)

In accordance with subdivision (c) of Section 4612 of the California Business and Professions Code, any massage therapy or establishment permit may be revoked or suspended by the Department of Finance, after a hearing, where any of the provisions of this chapter, or the provisions of Chapter 10.5 (commencing with Section 4600) of Division 2 of the California Business and Professions Code, are violated. During the time that the permit is suspended, it shall be unlawful for the permittee to exercise any of the rights granted under this chapter.

Any decision to suspend or revoke a permit may be appealed to the City Manager by filing one copy of a written appeal with the City Manager within ten (10) days after the mailing of the Notice of Decision by the Department of Finance.

A. The appeal shall clearly and concisely set forth the grounds upon which it is based.

B. If a ground of the appeal is that the Department of Finance’s action constituted a taking of the subject property or any part thereof under the California or United States Constitutions, that ground and all evidence (including specific financial data and analyses, if any) and argument in support thereof shall be clearly stated as a separate ground of the appeal, or it shall be waived. If specific evidence is not presented as part of the appeal, the takings claim shall be waived, and appellant shall be deemed to have waived any claim to sworn testimony and cross-examination. This requirement shall apply to appeals on the ground that the Board’s decision or any condition imposed by the Board denied the applicant any reasonable economic use of the subject property, was not sufficiently related to a legitimate public purpose, was not sufficiently proportional to any impact of the project, or for any other reason constituted a taking of property for public use without just compensation.

C. If a timely appeal is made by the applicant, the City Manager shall forward a copy of the written appeal to the Department of Finance.

The decision of the City Manager is final. The City Manager may promulgate written rules and regulations for the conduct of hearings by the Department of Finance and appeals to the City Manager. (Ord. 7238-NS § 2, 2012; Ord. 7214-NS § 12 (part), 2011; Ord. 7106-NS § 1 (part), 2009. Formerly 9.32.150)

A. Every person who violates any provision of this chapter shall be guilty of a misdemeanor and, upon conviction, such person shall be punishable as set forth in Chapter 1.20.

B. Every person who violates any provision of this chapter may be subject to administrative citations pursuant to Chapter 1.28.

C. Each violation of this chapter and each day of violation of this chapter shall be considered a separate and distinct violation thereof and the imposition of a penalty shall be as set forth in subsection A of this section for each and every separate violation and each and every day of violation. (Ord. 7214-NS § 12 (part), 2011; Ord. 7106-NS § 1 (part), 2009. Formerly 9.32.160)

If any section, subsection, sentence, clause or phrase of this chapter is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this chapter. In addition, the City Council hereby declares that it would have passed the ordinance codified in this chapter, and each and every section, subsection, sentence, clause or phrase not declared invalid or unconstitutional without regard to whether any portion of this chapter would be subsequently declared invalid or unconstitutional. (Ord. 7214-NS § 12 (part), 2011; Ord. 7106-NS § 1 (part), 2009. Formerly 9.32.170)