Brentwood Municipal Code Ch. 5.70 Massage

A. The city is authorized to regulate massage establishments by imposing reasonable conditions on the operation of massage establishments. This chapter is adopted under the authority of Government Code Sections 51030 through 51034, Government Code Section 37101, Business and Professions Code Section 16000, and California Constitution Article XI, Section 7.

B. In adopting these regulations, the city council acknowledges that massage therapy is a legitimate, viable professional field that provides valuable health and therapeutic benefits.

C. The city council finds that there are significant risks of injury to massage clients by improperly trained and/or uneducated massage therapists and this chapter provides reasonable safeguards against injury and economic costs.

D. The city council finds that it is reasonable to conclude that the presence of untrained, inexperienced trainees in massage establishments would encourage unlawful activity and pose a threat to the quality of life in the local community. Accordingly, it is the purpose and intent of this chapter to protect the public health, safety, and welfare by providing for the orderly regulation of businesses providing massage therapy services and discouraging prostitution and related illegal activities carried on under the guise of massage therapy.

E. It is also the purpose and intent of the city council that the operation of massage establishments be regulated in the interests of public health, safety, and welfare to provide minimum building sanitation and health standards, to ensure that persons offering massage possess the minimum qualifications necessary to operate such businesses and to perform such services offered, and to ensure that those offering massage services conduct their work in a lawful and professional manner.

F. Furthermore, it is the purpose and intent of this chapter to reduce or prevent neighborhood blight; to protect and preserve the quality of city neighborhoods and commercial districts; and to enhance enforcement of criminal statutes relating to the conduct of operators and employees of massage businesses.

G. This chapter relies upon the state certification process of the California Massage Therapy Council under California Business and Professions Code Sections 4600 through 4620. In addition, this chapter provides certain minimum standards for the operation of massage establishments, their managing employees, and massage therapists.

(Ord. 1016 § 2, 2020)

In this chapter, the following words and phrases have the following meanings:

Applicant.

In the case of a massage establishment permit, means an individual, or if not an individual, the general partner, chief executive officers, chief advisor, or other person responsible for the ownership and operation of the massage establishment, who applies to obtain a permit under this chapter.

California Massage Therapy Council or CAMTC.

The California Massage Therapy Council created under Business and Professions Code Section 4602.

Certified Massage Therapist or Therapist.

A person who is currently certified as a massage therapist by the CAMTC, and who administers massage for compensation. This includes a CAMTC-certified massage practitioner (certified under Business and Professions Code Section 4604.2).

Chief.

The chief of police of the city of Brentwood.

City attorney.

The city attorney of the city of Brentwood.

City manager.

The city manager of the city of Brentwood.

Client.

The customer or patron who pays for or receives massage services.

Compensation.

The payment, loan, advance, donation, contribution, deposit, exchange, or gift of money or anything of value. In addition to accepting other forms of compensation, a person may be deemed to have received compensation for performing a massage when the massage is offered as part of a membership, as part of a package of services or as incidental to the purchase of a product.

Employee.

Includes any owner, partner, operator, manager, supervisor, or worker, whether paid or not, who renders services of any nature in the operation of a massage establishment.

Independent contractor.

A massage therapist who is an independent contractor is one who works at a massage establishment (or provides outcall massage services), but is not a salaried employee and does not share a percentage of therapy proceeds with the massage establishment. Sometimes referred to as a rent-space massage therapist.

Manager.

The person who has been designated by the owner(s) to manage the massage establishment in his/her/their absence, or who is responsible for the day-to-day activities of a massage establishment.

Massage or bodywork.

The application of various techniques to the muscular structure and soft tissues of the human body. Application of massage and bodywork techniques may include, but is not limited to, stroking, kneading, tapping, compression, vibration, rocking, friction, pressure, and similar techniques. Examples of massage include Swedish massage, sports massage, shiatsu, polarity therapy, rolfing, reiki, hellerwork, and reflexology. Massage and bodywork have the same meaning.

Massage establishment.

Any business that offers massage in exchange for compensation, whether at a fixed place of business or at a location designated by the client throughout call massage services. Any business that 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, will be deemed a massage establishment under this chapter. The following are not considered massage establishments under this chapter:

A hospital, nursing home, sanitarium, physiotherapy establishment, office of a licensed medical professional, or other state-licensed physical or mental health facility;

A personal fitness training center, gymnasium, athletic facility, or health club, when the giving of massage is an incidental function of the business constituting ten percent or less of the business.

Operator.

Any and all owners and managers of a massage establishment.

Outcall massage service.

A business that provides massage at a location designated by the client or the massage therapist, other than at the premises of a massage establishment.

Owner.

Any of the following persons:

Any person who is a general partner of a general or limited partnership that owns a massage establishment;

Any person who has five percent or greater ownership interest in a corporation that owns a massage establishment;

Any person who is a member of a limited liability company that owns a massage establishment; or

Any person who has a five percent or greater ownership interest in any other type of business association that owns a massage establishment.

Reception area or waiting area.

An area immediately inside the front door of the massage establishment dedicated to the reception and waiting of clients of the massage establishment and visitors, and which is not a massage therapy room or otherwise used for the provision of massage therapy services.

Police department.

The police department of the city of Brentwood.

Sole provider.

A massage establishment where the individual owner owns one hundred percent of the business, is the only person who provides massage for compensation at or for that business, and has no other employees or independent contractors.

(Ord. 1016 § 2, 2020)

A. Massage Establishment. No person may own or operate a massage establishment in the city unless:

1. Each person administering massage for compensation (whether as an employee or independent contractor) is a certified massage therapist; and

2. The owner or operator has a current massage establishment permit from the police department under Section 5.70.040; and

3. The massage establishment complies with all requirements of this chapter.

B. Massage Therapist. No person may practice massage in the city who is not a certified massage therapist. A certified massage therapist must:

1. Only work at a city-permitted massage establishment (as an employee or independent contractor); or

2. Obtain a massage establishment permit as a sole provider under Section 5.70.040.

C. Additional City Permits. It is unlawful for any person to own or operate a massage establishment (including as a sole provider) without obtaining and maintaining in effect:

1. A city business tax certificate (Section 5.04.020); and

2. City approval for conformance with zoning requirements, building permit requirements, and sign permit requirements.

(Ord. 1016 § 2, 2020)

A. Permit. A massage establishment must obtain an annual permit from the police department, and will post the permit in the reception area (sole providers must carry a copy of the permit at all times when performing outcall massage). Upon request, the massage establishment will provide a copy of the state certification of any therapist working at the massage establishment. The massage establishment will notify the police department in writing within seven days of any change in the information provided on a form designated by the police chief.

The permit application will include:

1. Name, address, and telephone of the massage establishment;

2. Name, address, and telephone of the owner(s) and manager(s);

3. Contact information for the primary operator;

4. Name and proof of certification of each employee or independent contractor who will offer massage at (or through) the establishment;

5. A copy of a photographic government-issued identification card of the owner(s) and manager(s) of the massage establishment;

6. A statement that the massage establishment will only employ or use certified massage therapists;

7. A statement that the applicant will provide written notification of any changes within seven days;

8. Authorization for the city to investigate the truth of the information provided;

9. A copy of any lease or rental agreement for the massage establishment and a written acknowledgement from the property owner that states that the applicant has the right to occupy the property and acknowledges that the applicant may use the property for the massage establishment;

10. A written acknowledgement that the applicant received a copy of the city's massage regulations; and

11. A fee in the amount established by the city's cost allocation plan and schedule of city fees as adopted by resolution of the city council.

B. Background Check. Each owner and each manager, who is not a certified massage therapist, must apply to the police department for an annual background and history investigation. Each background check applicant will submit the following:

1. Information related to the applicant's business, occupation and employment history for the past five years;

2. Other information as the police department may reasonably require;

3. Fingerprints from a qualified private fingerprinting service, at the applicant's sole expense; and

4. An application fee in the amount established by the city's cost allocation plan and schedule of city fees as adopted by resolution of the city council.

C. Permit Issuance. The police chief will issue or deny the application for a massage establishment permit within sixty days of receiving a completed application. The police chief will give written notice of the grounds for denial to the applicant personally or by first class mail, postage prepaid, at the address provided on the application. The notice will advise the applicant of the right to appeal as provided in this chapter. The police chief will deny a permit if any of the following circumstances exist:

1. The application is incomplete and/or required supplementary material is not submitted within thirty days of the date the material is requested;

2. The applicant, or any operator, has previously had a massage establishment permit or any similar license, certificate, or registration revoked by the city, CAMTC or any government agency during the five years preceding the date of the application;

3. The applicant, or any operator, has made a material misrepresentation in the application or supplementary material submitted with the application;

4. The applicant, or any operator, has been successfully prosecuted under the Red Light Abatement Act (California Penal Code Sections 11225, et seq.) or any similar law in another jurisdiction during the five years preceding the date of the application; or

5. The applicant, or any operator, has been convicted of conduct that requires registration under California Penal Code, Section 290; conduct which is in violation of California Penal Code Sections 220, 245.3, 261, 264.1, 266e, 266h, 266i, 314, 315, 316, 318, 345.5, 647(a), 647(b), 647(d), 653.22, or 653.23; any other crime involving dishonesty, fraud, deceit, violence, or moral turpitude; conspiracy or attempt to commit any of the aforementioned designated offenses; convictions to a charge of a violation of California Penal Code Sections 415 and 602, or any lesser included or related offense, in satisfaction of, or as substitute for any of the previously listed crimes, or any crime committed while engaged in the ownership or operation of a massage establishment or the practice of massage therapy; convictions that have been expunged and convictions under the laws of other jurisdictions that proscribe the same or similar conduct as the previously listed crimes; or conviction of California Health and Safety Code Section 11550 or any offense involving the illegal sale, distribution, or possession of a controlled substance specified in California Health and Safety Code Sections 11054, 11055, 11056, 11057, or 11058 during the five years preceding the date of the application.

D. Decision Postponed. The police chief may postpone a decision on the permit application in the following circumstances:

1. If prosecution is pending against the applicant or any operator for any conduct listed in subsection C of this section, the police chief may postpone the decision on the application until the final resolution of the prosecution is reached. As used in this chapter, prosecution means charges filed by the district attorney, administrative proceedings brought by a local government, state government, or other government agency, or a civil action maintained by the city attorney.

2. The police chief may postpone a decision on the permit application until the city receives the applicant's fingerprint review results from the Department of Justice.

E. Not Transferrable. A massage establishment permit is not transferrable.

(Ord. 1016 § 2, 2020)

The operator of a massage establishment will maintain and operate the establishment in a safe and sanitary manner in compliance with all of the following requirements:

A. Comply with all applicable building, fire, safety, health, electrical, plumbing, mechanical, heating and ventilation, sanitation, zoning, signage, and other laws applicable to the premises, and comply with standards established by the Contra Costa County Department of Health Services for such businesses;

B. Provide for the regular removal of garbage and refuse, the storage of soiled linens and towels, and the safe storage or removal of flammable materials;

C. Maintain all equipment used to perform massage services in a safe and sanitary condition, including the regular application of cleansers and bacterial cleaning agents;

D. At all times have an adequate supply of clean sanitary towels, coverings, and linens, and provide these for the personal use of each client;

E. Maintain all bathroom and plumbing fixtures in a sanitary condition, provide hot and cold running water, and comply with sanitation requirements of the county health department;

F. Provide a wash basin for massage therapists and employees, located within or as close as practicable to the area devoted to the massage therapy services. Each wash basin will be equipped with hot and cold running water, soap in a dispenser, and sanitary towels;

G. Provide either a separate room or dressing and locker facilities for each client. However, dressing and undressing may occur in the same room as massage therapy if the client is alone in the room with the door(s) closed and opaque coverings are present on any windows while undressing or dressing. The massage therapist or other clients may not be present in the same room when the client is undressing;

H. In each room or cubicle where massage is administered, have lighting whenever the area is occupied equivalent to a minimum of an incandescent twenty-five-watt clear-glass light bulb;

I. All massage services will be paid for in the reception area, and all tips, if any, will be paid in the reception area;

J. No massage establishment may discriminate or exclude patrons on the basis of race, sex, religion, age, or physical disability;

K. A copy of the CAMTC certificate of each and every massage therapist employed or offering massage services in or through the massage establishment will be displayed in the reception area. The city will be provided with a copy of the CAMTC identification card of each and every massage therapist employed or offering massage services in or through the massage establishment. CAMTC certificates of former employees or independent contractors will be removed as soon as those massage therapists are no longer employed by or offering services through the massage establishment;

L. A CAMTC identification card or, for those CAMTC certified massage therapists without a CAMTC identification card, another type of photo identification card (such as a driver's license or state issued identification card)will be worn by and be clearly visible on each massage therapist's person at all times when the massage therapist is present on the premises of the massage establishment or providing outcall massage;

M. A list of the services available and the cost of such services will be posted in the reception area and/or as a printed brochure available in the reception area, and will be described in readily understandable language. Outcall service providers will provide such a list to clients in advance of performing any service. No operator will permit any service to be provided other than those posted or listed as required herein, nor will an operator or a massage therapist receive compensation for any service other than those posted on the list of services;

N. For each massage service provided, every massage establishment will keep a complete and legible written record of the following information: the date and hour that service was provided; the service received; the compensation received for the services, including any gratuity or tip; the name or initials of the employee entering the information; and the name of the massage therapist administering the service. Such records will be open to inspection and copying by the police department, may not be used by any massage therapist or operator for any purpose other than as records of service provided, and may not be provided to other parties by the massage therapist or operator unless otherwise required by law. Such records will be retained on the premises of the massage establishment for a period of two years and be immediately available for inspection during business hours;

O. All massage establishment operators and their employees and independent contractors, including massage therapists, will meet the dress code requirements in Business and Professions Code Section 4609, subdivision (a)(10);

P. No person will enter, be, or remain in any part of a massage establishment premises while in possession of an open container of alcohol, or consuming or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs. The operator will not permit any such person to enter or remain upon such premises;

Q. No massage establishment will operate as a school of massage, or use the same facilities as that of a school of massage;

R. No massage establishment will place, publish, or distribute, or cause to be placed, published, or distributed any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective clients that any service is available other than those services listed as an available service pursuant to this chapter, nor will any massage establishment employ language in the text of such advertising that would reasonably suggest to a prospective client that any service is available other than those services as described in compliance with the provisions of this chapter;

S. No massage will be given unless the client's genitals are, at all times, fully covered. A massage therapist will not, in the course of administering any massage, make physical contact with the genitals of any other person regardless whether the contact is over or under the person's clothing or draping;

T. Where the massage establishment has staff available to assure security for clients and massage therapists, the entry to the reception area will remain unlocked during business hours or when clients are present;

U. No massage establishment located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area will, during business hours, block visibility into the interior reception area through the use of curtains, closed blinds, tints, signage, posters, or any other material that obstructs, blurs, or unreasonably darkens the view into the premises. For the purpose of this subsection, there is an non-rebuttable presumption that the visibility is impermissibly blocked if more than ten percent of the interior reception area is not visible from the exterior window;

V. No person will be employed in a massage establishment, perform massage therapy, or manage or hold an ownership interest in a massage establishment who is not at least eighteen years of age;

W. No massage establishment may permit massage services to be provided between the hours of nine p.m. and seven a.m. A massage commenced prior to nine p.m. will nevertheless terminate at nine p.m., and all clients will exit the premises at that time. It is the obligation of the massage establishment to inform clients of the requirement that services must cease at nine p.m. A massage establishment operating under a conditional use permit (CUP) approved prior to the enactment or amendment of this chapter may continue to operate under the hours permitted in the CUP. Nothing in this chapter will be construed to prevent the city from setting specific operating hours for each massage establishment through the CUP process (if required);

X. No persons, including operators, employees, and independent contractors, will be permitted to sleep within the premises of a massage establishment between the hours of nine p.m. and seven a.m. There will be a rebuttable presumption that a person has been sleeping within the premises if there is bedding, clothing, personal hygiene products, and/or suitcases, and the person is present during the restricted hours.

(Ord. 1016 § 2, 2020)

The police chief, the chief building official, and code enforcement officers have the right to enter the premises from time to time during regular business hours for the purpose of making periodic, reasonable, inspections to observe and enforce compliance with this chapter.

(Ord. 1016 § 2, 2020)

A. Revocation or Suspension of Massage Establishment Permits. The police chief may suspend or revoke a massage establishment permit, according to procedures set forth in subsection B below, if there is good cause to believe that:

1. The massage establishment has been operated in a manner which violates any provision of this chapter or of the California Massage Therapy Act (California Business and Professions Code, Sections 4600 through 4621), as each may be amended from time to time;

2. The applicant or an employee or independent contractor has committed any offense involving lewdness, indecent exposure, prostitution, human trafficking or any other offense which would be grounds for denial pursuant to Section 5.70.040, or employees or independent contractors of the massage establishment have committed such offenses in the course of their employment and the permit holder has permitted them to do so or has failed to prevent them from doing so;

3. An individual who is not CAMTC certified, or whose CAMTC certification has been suspended or revoked, has provided massage at the massage establishment or conducted outcall massage through the massage establishment; or

4. The applicant or an employee or an independent contractor has made a false or misleading statement or omission of fact on his/her application for a permit, or for renewal of the permit, or in any records required to be maintained under this chapter.

Any act or omission of any employee or independent contractor which constitutes a violation of this chapter will be deemed a violation of the owner/operator of the massage establishment.

B. Procedure for Revocation or Suspension of Massage Establishment Permits.

1. Notice to Applicant. Whenever the police chief has good cause to believe that grounds for the suspension or revocation of a massage establishment permit exist, he/she will give written notice of the intended suspension or revocation to the applicant. The notice will provide for suspension or revocation of the massage establishment permit ten calendar days after service of the notice upon the applicant, unless the applicant appeals the decision pursuant to Section 5.70.080. The notice will provide information on the appeal process and will state the alleged grounds for the proposed revocation or suspension of the permit. Said notice will also state that if no written request for an appeal hearing is timely received, the applicant will be deemed to waive its rights to an appeal. The notice will be served on the applicant personally or by deposit of the notice in the United States mail by certified mail at the most recent home or business address on file with the police department.

2. Surrender of Suspended or Revoked Massage Establishment Permit to Police Chief. Upon a written decision by the police chief; or in the event of an appeal, a written decision by the hearing officer, which suspends or revokes a permit, the permit will immediately be surrendered to the police chief and the massage establishment will cease provision of massage services. In the case of a suspension, the police chief will return the permit after the period of suspension has ended.

C. Immediate Suspension or Revocation of a Massage Establishment Permit.

1. The police chief may immediately suspend and/or revoke a massage establishment permit if there is reasonable cause to believe that:

a. The applicant is operating or managing the massage establishment, or providing services in a manner which poses an immediate danger to the health or safety of employees, clients, or the public; or

b. The applicant has been convicted of any offense involving lewdness, indecent exposure, prostitution, sexual battery, human trafficking, or any sex-related crime.

c. There are massage therapists onsite, but none of the massage therapists present are CAMTC certified massage therapists.

2. If the police chief immediately suspends and/or revokes a permit, the police chief will provide notice to the applicant by personal delivery or by certified mail. The notice will contain a statement that the massage establishment permit is immediately suspended and/or revoked, and such decision will remain in effect during the pendency of the appeal process. The notice will provide information on the appeal process. If applicable, the notice will contain a statement that the suspension may lead to a permanent revocation of the massage establishment permit.

3. Following the receipt of such immediate suspension and/or revocation notice and within ten calendar days thereafter, the applicant may file an appeal of the suspension and/or revocation and request a hearing be held in accordance with Section 5.70.080.

4. If after ten calendar days from the receipt of the immediate suspension and/or revocation notice, the applicant has not requested an appeal, the police chief's decision to suspend and/or revoke will become final.

D. Effect of Suspension. If a massage establishment permit is suspended, the massage establishment will cease providing massage services for the period of suspension.

E. Effect of Revocation. If a massage establishment permit is revoked, no massage establishment will be authorized or permitted to operate in the same location where the massage establishment permit was revoked for a period of two years from the effective date of the revocation. If the applicant is not also the legal owner of the real property on which the massage establishment is situated, notice of such revocation and the two year prohibition will be provided the owner of record of the property as shown on the latest county assessment roll.

(Ord. 1016 § 2, 2020)

A. A person dissatisfied with the action of the chief under this chapter, may appeal the decision by delivering to the city clerk not more than ten days after the effective date of the decision, a written notice of appeal, along with a brief description of the reasons for the appeal. The clerk will immediately forward the request to the city manager for handling. In the event a notice of appeal is timely filed, the chief's decision is stayed until a final order has been rendered by the hearing officer.

B. The city manager will upon receipt of the appeal set the matter for hearing before a hearing officer designated by the city manager. The hearing will be scheduled for not more than thirty days after receipt of the appeal unless a longer time is requested or consented to by the appellant. The hearing will not be conducted under the formal rules of evidence.

C. Within ten days of the conclusion of the hearing, the hearing officer will make a written finding and decision, which will be delivered to the city manager and chief and to the appellant by first class mail.

D. The decision of the hearing officer will be final.

E. Failure to appeal an action of the chief under this chapter will be deemed a failure of the person to exhaust their administrative remedies.

(Ord. 1016 § 2, 2020)

The chief will designate a person in the police department to coordinate with CAMTC, including maintaining a list of certified therapists practicing in the city, maintaining a list of massage establishments operating in the city, receiving notices and information from CAMTC, and notifying CAMTC of any information related to alleged criminal activity or unprofessional conduct. (Business and Professions Code Section 4614.)

(Ord. 1016 § 2, 2020)

Any place where lewdness or prostitution occurs is a public nuisance which may be abated and permanently enjoined, and for which the city may recover damages from the property owner, as well as from the person conducting or maintaining the nuisance. (Penal Code Sections 11225 and 11226.)

(Ord. 1016 § 2, 2020)

A. It is the duty of the chief to enforce this chapter, and to coordinate its enforcement efforts with CAMTC under Section 5.70.090.

B. Pursuant to the city's prosecutorial discretion, the city may enforce violations of this chapter by criminal, civil and/or administrative actions, including, but not limited to, administrative citation fines as set forth in Chapter 1.24 of this code. Notwithstanding Section 1.24.020, the prior written notice required in subsection A and the report required in subsection B of Section 1.24.020, are not required prior to issuing an administrative citation for a violation of this chapter, except as otherwise provided by state law.

C. Any person who violates this chapter is guilty of a misdemeanor.

D. Any massage establishment operated, conducted, or maintained contrary to the provisions of this chapter will be unlawful and a public nuisance, and the city may, in the exercise of discretion, in addition to or in lieu of the remedies prescribed hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in any manner provided by law, including, but not limited to, the procedures set forth in Chapter 8.00 of this code.

E. All remedies prescribed by the provisions of this chapter will be cumulative, and the use of one or more remedies by the city will not bar the use of any other remedy for the purpose of enforcing the provisions of this chapter.

(Ord. 1016 § 2, 2020)