Daly City Municipal Code Ch. 5.52 Regulation of Massage Services and Massage Establishments

A. Purpose.

1. In enacting these regulations the city council ("city council") recognizes that massage is a viable professional field offering the public valuable health and therapeutic services.

2. It is the purpose and intent of the city council that the operation of massage establishments and persons offering massage be regulated in the interests of public health, safety and welfare by providing minimum building, sanitation and health standards; and to insure that persons offering massage shall possess the minimum qualifications necessary to operate such businesses and to perform such services offered; and to promote the health, security and sanitation of customers.

3. It is the intent of this chapter to enact regulations to insure that those offering massage services are qualified and trained and can be expected to conduct their work in a lawful and professional manner. The city council finds that existing controls have not satisfactorily addressed or regulated serious police problems, nor have the existing controls regulated the profession so as to discourage the use of the profession for objectionable and illegal purposes.

B. Conflicts With Other Provisions of this Code. In the event of any conflicts or inconsistencies between the provisions of this chapter with the provisions of any other provision of this code, the provisions of this chapter shall control, unless to do so would be inconsistent with the stated purpose of this chapter.

C. Responsibility for Enforcement. The primary responsibility for enforcement of the provisions of this chapter shall be vested in the chief of police.

(Ord. 1243 § 2 (part), 1997)

For the purpose of this chapter, unless the particular provision or the context clearly requires a different meaning, the definitions and provisions contained in this section shall govern the construction, meaning and application of words and phrases used in this chapter:

"Chief of police" means the chief of the Daly City police department, or his or her duly authorized agents and representatives.

"City" means the city of Daly City.

"City council" means the city council of the city of Daly City.

"City manager" means the city of Daly City's city manager, or his or her duly authorized agents and representatives.

"Days" means calendar days, unless otherwise specified.

"Massage" means any method of treating the external parts of the body for remedial, health or hygienic purposes by means of friction against, pressure on, 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 other appliances or devices, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations, or by baths including but not limited to Turkish, Russian, Swedish, Japanese, vapor, shower, electric tub, sponge, mineral, fomentation, or any other type of bath.

"Massage establishment" means any establishment having a fixed place of business where, for consideration, any individual, firm, association, partnership, corporation, joint venture 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 massages or baths, as regular functions, including any business where a function of such business is to engage in or carry on massage not at a fixed location but at a location designated by the customer, massage technician or other person.

"Massage technician" means any person who administers massages, baths, or health treatments involving massage, or baths as the principal function, to another person for any consideration whatsoever.

"Permit" means the city-issued permit to engage in the business activity of operating a massage establishment or the permit to engage in the activities of a massage technician. Both permits shall be obtained through the process required by this chapter. Unless specifically provided otherwise, permits are not transferable.

"Permittee" means a person, as defined in this section, who has obtained a massage establishment permit or a massage technician permit. In the context of a massage establishment permit, permittee shall include the owner, operator, manager and/or responsible officer.

"Person" means any individual, firm, association, partnership, corporation, joint venture or combination of individuals.

"Recognized school of massage" means any school or institution of learning which teaches the theory, ethics, practice, profession and work of massage, which school or institution of learning requires a residence course of study of not fewer than two hundred hours to be given before the student shall be furnished with a diploma or certificate of graduation from such school or institution of learning following the successful completion of such course of study or learning, and which school has been approved pursuant to California Education Code Section 94311, or, if the school is not located in California, has complied with standards commensurate with those required in Section 94311 and has obtained certification under any similar state certification program, if such exists. Any school or institution of learning offering or allowing correspondence course credit not requiring actual attendance at class shall not be deemed a "recognized school of massage."

(Ord. 1243 § 2 (part), 1997)

It is unlawful for any person to engage in, conduct or carry on, or permit to be engaged in, conducted or carried on in or upon any premises within the city, the operation of a massage establishment or the function of a massage technician without first having obtained a permit issued by the chief of police pursuant to the provisions set forth in this chapter. A permit shall be valid for twelve months from the date of issuance, unless earlier revoked or suspended.

(Ord. 1243 § 2 (part), 1997)

A massage establishment and massage technicians shall obtain a city business license and pay the required city business license tax for such business and occupation.

(Ord. 1243 § 2 (part), 1997)

The provisions of this chapter shall not apply to the following classes of individuals or businesses while engaged in the performance of their duties:

A. Physicians, surgeons, chiropractors, osteopaths, nurses or physical therapists who are duly licensed to practice their respective professions in the state of California and persons working directly under the supervision of such persons. "Working directly under the supervision" means that the person is an employee or independent contractor of the licensed professional, is working at the same location as the licensed professional, and has his or her work checked by the licensed professional;

B. Barbers, beauticians and cosmetologists who are duly licensed under the laws of the state of California while engaging in practices within the scope of their licenses; except that this exemption from a city permit shall apply solely to the massaging of the neck, face, hands, feet and/or scalp of the customers;

C. Hospitals, nursing homes, sanitariums, or any other health facilities duly licensed by the state of California;

D. Accredited high schools, junior colleges and colleges or universities whose coaches and trainers are acting within the scope of their employment;

E. Trainers of amateur, semi-professional or professional athletes or athletic teams while engaging in their training responsibilities for and with athletes; and trainers working in conjunction with a specific athletic event such as road races, track meets, triathlons, biathlons or similar single-occurrence athletic or recreational events;

F. Massage therapists who perform massages at an establishment where the primary use is the operation of a bona fide and suitably equipped fitness training center or gymnasium, where such massage is clearly incidental to the ongoing primary use and which establishment has received a use permit as required by the Daly City Municipal Code.

(Ord. 1243 § 2 (part), 1997)

The following provisions shall apply to the permit application process:

A. Any person desiring to obtain a permit to operate a massage establishment shall make application to the chief of police.

B. Each application for a massage establishment permit shall be accompanied by a nonrefundable fee. The fee paid shall be to defray in part the cost of the investigation and report required by this chapter. This massage establishment permit application fee shall be determined from time to time by the city council by resolution to properly reflect cost recovery it deems appropriate. A copy of the receipt for the nonrefundable fee shall accompany the application.

C. The massage establishment permit application and fee required under this section shall be in addition to any license, permit, or fee required under any other section of this code or other city law or regulation.

D. The application and fee for a massage establishment permit does not authorize a massage establishment to operate until such permit has been granted and the business license tax has been paid to the city's finance department.

E. Each applicant for a permit shall submit the following information and/or documents together with a statement in writing that the applicant certifies under penalty of perjury that the information contained in the application is true and correct:

1. The full, true name under which the business will be conducted;

2. The present or proposed address where the business is to be conducted;

3. The applicant's full, true name, and other names used, date of birth, valid California driver license number (or California identification number), social security number (unless prohibited by law), present residence address and telephone number, height, weight, color of hair and color of eyes. Additionally, applicant shall provide such other identification and information as is deemed necessary by the chief of police in order to discover the truth of the matters required in the application;

4. The previous residence addresses of the applicant for a period of five years immediately preceding the date of the application and the dates of such residence;

5. The applicant's business, occupation and employment history for seven years preceding the date of application and the inclusive dates of same. Applicant shall provide proof that within the seven years preceding submission of the application, the owner, operator, manager and/or responsible officer has not:

a. Had a massage establishment, massage technician, tanning establishment or other similar permit or license denied, suspended or revoked by the city, or any other state or local agency,

b. Engaged in conduct or operated a massage, tanning or similar establishment in a manner that would be grounds for denial, suspension or revocation of a permit under this chapter, or

c. Owned or managed a massage, tanning or similar establishment where persons required to be licensed were allowed to work without the required license or permit;

6. A statement of the permit history of the applicant by identifying whether or not such person has ever held a professional or vocational license or permit issued by any agency, board, city, county, territory or state; the date of issuance of such a permit or license; whether or not the permit or license is still in effect, was revoked or suspended, and if so, the reason(s) therefor;

7. A statement that no injunction has been issued under the Red Light Abatement Law (Penal Code Section 11225 et seq.) against the applicant or against a business establishment where the applicant was a permittee or employee, and that the applicant has not been convicted in a court of competent jurisdiction of an offense involving:

a. Conduct which requires registration under California Penal Code Section 290,

b. Conduct which is a violation of the provisions of California Penal Code Sections 266(h) or (i), 314, 315, 316, 318, 647(a) or (b),

c. Crimes that are designated in Government Code Section 51032, or

d. Any other crime involving dishonesty, fraud, deceit, violence or moral turpitude.

Convictions under the laws of other states or countries which prohibit the same or similar conduct as the California crimes listed herein shall be provided. Convictions that have been expunged must be reported, and all injunctions for nuisances under Penal Code Section 11225 or similar laws must also be reported.

For purposes of this portion of the statement, if the applicant is a corporation, the statement shall apply to the stockholders holding more than five percent of the stock of that corporation, the officers and/or directors. If the applicant is a partnership, the statement shall apply to all partners, both general and limited;

8. A complete list of all services to be provided with definitions and/or descriptions attached;

9. The name, address and date of birth of each manager or other person to be principally in charge of the operation of the establishment, each massage technician and each employee who is or will be employed at the establishment;

10. The name and address of any massage or tanning business or other like establishment owned or operated by any person whose name is required to be given pursuant to this section;

11. Acceptable written proof that the applicant is at least eighteen years of age;

12. Documentation to prove that the applicant has lawful right to work in the United States;

13. Corporations. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its articles of incorporation or charter together with the state and date of incorporation and the names and addresses of each of its current officers and directors, and of each stockholder holding more than five percent of the stock of that corporation. A copy of its articles of incorporation shall be submitted with the application;

14. Partnerships. If the applicant is a partnership, the application shall set forth the names and residence address of each of the partners, including limited partners. If the applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership as filed with the county clerk. If one or more of the partners is a corporation, the provisions of subsection (E)(13) of this section pertaining to corporate applicants shall apply to the corporate partner;

15. Limited Liability Company. If the applicant is a limited liability company, the applicant shall set forth the names and addresses of its members and shall furnish a copy of its articles of organization;

16. Responsible officer. The corporation, limited liability company or partnership applicant shall designate one of its officers or members to act as its responsible officer. Such person shall complete and sign all application forms required of an individual applicant under this chapter. The responsible officer must, at all times, meet all of the requirements set for permittees by this chapter or the permit shall be suspended until a responsible officer who meets such requirements is designated. If no such person is designated in writing within ninety days of a change in the person previously identified, the permit is deemed canceled and a new application for permit must be filed and processed;

17. Upon request of the chief of police, the applicant may be required to furnish fingerprints for the purpose of establishing identification. The fingerprints will be taken at a place designated by the chief of police. Any required fingerprinting fee shall be the responsibility of the applicant;

18. Two passport style photographs of the applicant and the responsible officer shall be provided to the police department. The chief of police may confirm the height and weight of the applicant and take additional photographs;

19. A description of any other business to be operated on the same premises, or on adjoining premises, owned or controlled by the applicant;

20. The name and address of the owner and lessor of the real property upon or in which the business is to be conducted. In the event the applicant is not the legal owner of the property, the application must be accompanied by a copy of the lease and a notarized acknowledgment from the owner of the property that a massage establishment will be located on his/her property;

21. Written authorization for the city, its agents and employees, to seek information and to conduct an investigation into the truth of the statements set forth in the application and into the background of the applicant and/or the responsible officer;

22. Proof of massage malpractice insurance in the sum of not less than one hundred thousand dollars per massage technician licensed, or to be licensed, at the massage establishment up to a maximum of five hundred thousand dollars. This requirement can be satisfied by malpractice insurance being provided in the name of individual massage technicians;

23. The applicant shall advise the city in writing of any change of address or change in fact(s) represented to city which may occur during the city's processing of the application for a massage establishment permit;

24. A certificate of zoning compliance from the city's director of economic and community development that certifies that the premises of the establishment meets all applicable codes and regulations must be submitted prior to application approval. Any required inspection fees shall be the responsibility of the applicant. If the city's director of economic and community development finds that a use permit is required for the establishment, a use permit must be obtained in accordance with the city's zoning ordinance.

(Ord. 1243 § 2 (part), 1997)

The chief of police has up to sixty days after submission of all required information, including the required certificates of compliance, to investigate the application and the background of the applicant. Upon the completion of the investigation, the chief of police may grant the permit, with or without conditions, if, upon review of the requirements listed in this chapter, all of the following are found:

A. The required fee has been paid;

B. The application conforms in all respects to the provisions of this chapter;

C. The applicant has not made a material misrepresentation in the application;

D. The permit as requested by the applicant would comply with all applicable laws, including, but not limited to, health, zoning, fire and safety requirements and standards; and

E. The applicant, if an individual; or any of the stockholders of the corporation, or any officers or director, if the applicant is a corporation; or a manager or member if the applicant is a limited liability company; or a partner if the applicant is a partnership; or the responsible officer; or the person who will manage or operate the establishment; or persons to be employed at the establishment have not been convicted of an offense involving conduct which requires registration under California Penal Code Section 290, or of conduct which is a violation of the provisions of California Penal Code Sections 266(i), 314, 315, 316, 318, 647(a), (b), (as now written or as amended), or of crimes that are designated in Government Code Section 51032(b), or any other crime involving dishonesty, fraud, deceit, violence or moral turpitude; or that an injunction has not been issued under Penal Code Section 11225. Convictions under the laws of other states or countries which proscribe the same or similar conduct as the California crimes designated herein shall be considered;

F. The applicant or responsible officer has not had a massage establishment, off-premise massage service, massage technician, tanning establishment permit or other similar permit or license revoked, or suspended by the city, or any other state or local agency; or engaged in conduct or operated a massage, tanning or similar establishment in a manner that would be grounds for denial or revocation of a permit under this chapter; or violated any provision of this chapter, or of any similar ordinance, law, rule or regulation of any other public agency which regulates massage or the operation of massage or tanning establishments; or owned or managed a massage or similar establishment where persons required to be licensed were allowed to work without the required licenses;

G. The applicant possesses the background and qualifications to conduct a bona fide massage establishment;

If, following investigation of the applicant, the chief of police cannot make the findings required in this section, the application shall be denied by written notice which sets forth the reasons for denial. The applicant may appeal the denial as set forth in Section 5.52.220.

(Ord. 1243 § 2 (part), 1997)

No person shall engage in, conduct, carry on, any massage establishment activity or conduct unless each and all of the following requirements are met:

A. Each person employed, or acting as a massage technician, shall have a valid permit and/or badge issued by the chief of police which shall be worn on the massage technician's person at all times during working hours. It is unlawful for any owner, operator, manager and/or responsible officer to employ or permit a person to act as a massage technician who is not in possession of a valid, unrevoked massage technician permit issued pursuant to this chapter.

B. The possession of a valid massage establishment permit does not authorize the permit holder or any other person to perform work for which a massage technician permit is required.

C. Massage shall be provided or given only between the hours of seven a.m. and ten p.m. No massage establishment shall be open and no customer shall be in the establishment between ten p.m. and seven a.m.

D. A list of services available and the cost of such services shall be posted in an open public place within the premises and they shall be described in readily understandable language. No owner, operator, manager and/or responsible officer shall permit, and no massage technician shall offer or perform, any service other than those posted.

E. The massage establishment permit and a copy of the permit of each and every massage technician employed in the establishment shall be displayed in an open and conspicuous place on the premises.

F. Every massage establishment shall keep a written record of:

1. The date and hour of each service provided;

2. The name of each patron and the service received; and

3. The name of the massage technician administering the service.

The records shall be open to inspection only to city officials, including, but not limited to the police department and the city attorney's office, which is charged with enforcement of this chapter. These records may not be used by the permittee for any other purpose than as records of service provided, and they shall not be provided to other parties by the massage establishment or service. The records shall be retained on the premises of the massage establishment business office for a period of not less than two years.

G. Massage establishments shall at all times be equipped with an adequate supply of clean sanitary towels, coverings and linens. Clean towels, coverings and linens shall be stored in enclosed cabinets. 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. Soiled linens and paper towels shall be deposited in separate receptacles.

H. Wet and dry heat rooms, steam or vapor rooms or cabinets, toilet rooms, shower and bathrooms, whirlpool baths and pools shall be thoroughly cleaned and disinfected with a commercial disinfectant, as needed, but at least once each day the premises are open. Bathtubs shall be thoroughly cleaned with a disinfectant after each use. All walls, ceilings, floors and other physical facilities for the establishment must be in good repair and maintained in a clean and sanitary condition.

I. Instruments utilized in performing massage shall not be used on more than one patron unless they have been sterilized using approved sterilization methods.

J. All employees, including massage technicians, shall wear clean, nontransparent outer garments. The garments shall not expose their genitals, pubic areas, buttocks or chest.

K. No person shall enter, be or remain in any part of a massage establishment while in possession of an open container of alcohol, or while consuming or using any alcoholic beverage or illegal drugs. The owner, operator, manager and/or responsible officer shall not permit any such person to enter or remain upon such premises.

L. No massage establishment granted a permit under the provisions of this chapter shall 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 customers that any service is available other than those services described in Section 5.52.020 of this chapter, nor shall any massage establishment employ language in the text of such advertising that would reasonably suggest to a prospective patron that any service is available other than those services as described in Section 5.52.020 of this chapter.

M. No massage may be carried on within any cubicle, room, booth or any area within a massage establishment which is fitted with a door capable of being locked. All doors to dressing rooms and treatment rooms shall open inward. Draw drapes, curtain enclosures or accordion-pleated closures are acceptable on all inner dressing and treatment rooms in lieu of doors.

N. All exit doors shall comply with the requirements of the most recent editions of the Uniform Building Code and the Uniform Fire Code.

O. A massage shall not be given unless the patron's genitals are fully covered at all times.

P. No massage establishment shall be open for business without at least one massage technician on the premises at all times who is in possession of a current, unrevoked permit.

Q. A massage table or chair shall be used for massage. No mattresses shall be placed on the floor.

R. Unlicensed massage technicians and those persons other than scheduled customers shall not loiter, congregate or remain on the premises during the massage establishment's business hours.

(Ord. 1243 § 2 (part), 1997)

Every massage establishment shall maintain facilities meeting the following requirements:

A. Any signs shall be in conformance with the current ordinances of the city.

B. Minimum lighting shall be provided in accordance with Article 220 of the National Electrical Code, and, in addition, at least one artificial light of not less than forty watts shall be provided in each room or enclosure where massage services are performed on patrons.

C. Minimum ventilation shall be provided in accordance with the Uniform Building Code.

D. Adequate equipment for disinfecting and sterilizing instruments used in performing the acts of massage shall be provided.

E. Hot and cold running water shall be provided at all times.

F. Closed cabinets shall be provided for storage of clean linens.

G. Adequate dressing, locker and toilet facilities shall be provided for patrons.

H. A minimum of one wash basin for employees shall be provided at all times. The basin shall be located within or as close as practicable to the area devoted to performing of massage services. Sanitary towels shall also be provided at each basin.

I. Pads used on any massage tables shall be covered with a durable, washable plastic or other acceptable waterproof material capable of being thoroughly cleaned and disinfected.

J. Upon request of the city, the premises may be required to operate and construct its facilities so as to provide access to its premises and services to disabled persons.

(Ord. 1243 § 2 (part), 1997)

The city officials charged with investigating and enforcing compliance with this chapter, including, but not limited to the city's police department, fire department and the city's building official, or their designees, shall have the right to enter the premises from time to time during regular business hours for the purpose of making reasonable inspections to observe and enforce compliance with building, fire, electrical, plumbing or health regulations, and to enforce compliance with applicable regulations, laws and the provisions of this chapter.

(Ord. 1243 § 2 (part), 1997)

No massage establishment permit may be sold, transferred or assigned by the permittee, or by operation of law, to any other person or persons. Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed to constitute a voluntary surrender of such permit and such permit shall thereafter be deemed terminated and void, except for the following:

A. If the permittee is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner or partners without affecting a surrender or termination of such permit. In each case the permittee shall thereafter be deemed to be the surviving partner(s); or

B. If the permit is issued to a corporation, stock may be sold, transferred, issued or assigned to stockholders who have been named on the application. If any stock is sold, transferred, issued or assigned to a person not listed on the application as a stockholder, the permit shall be deemed terminated and void unless the new stockholders are identified within ten days of transfer and they meet all requirements under this chapter for stockholders.

(Ord. 1243 § 2 (part), 1997)

The following is applicable to a change of location or a change of name:

A. A change of location of a massage establishment may be approved by the chief of police, with the prior approval of the director of economic and community development and the fire chief, or their designated representatives, provided all ordinances and regulations of the city are complied with prior to the relocation or change of name. This may include applying for and receiving land use approvals, such as a use permit or variance.

B. No permittee shall operate or conduct any massage establishment under any name or designation not specified in the approved permit.

C. Any application for an expansion of a building or other place of business of a massage establishment shall require compliance with this chapter; no expansion of a nonconforming location shall be permitted.

(Ord. 1243 § 2 (part), 1997)

No person shall engage in the business of massage or act as a massage technician unless such person holds a valid massage technician's permit issued by the city's police department. Each massage technician permit holder shall be issued a photo identification badge from the city's police department which will also serve as a massage technician permit. The permit holder shall display the massage technician permit on his/her person during business hours.

(Ord. 1243 § 2 (part), 1997)

Each massage technician shall be required to obtain a permit before administering massage. The procedure to obtain a massage technician permit is as follows:

A. Each applicant for a massage technician permit shall make application to the chief of police.

B. Each application for a massage technician permit shall be accompanied by a nonrefundable fee. The fee paid shall be to defray in part the cost of the investigation and report required by this chapter. This massage technician permit application shall be determined from time to time by the city council by resolution to properly reflect cost recovery adjustments it deems appropriate. A copy of the receipt for the nonrefundable fee shall accompany the application.

C. The massage technician permit application and fee required under this section shall be in addition to any license, permit or fee required under any other section of this code or other city law or regulation.

D. The application and fee required for a massage technician permit does not authorize the applicant to provide massage until such permit has been granted.

E. Each applicant for a massage technician permit shall submit the following information and/or document(s) together with a statement in writing that the applicant certifies under penalty of perjury that the information contained in the application is true and correct:

1. All information required by Section 5.52.060 (E)(3)—(7), (11), (12), (17), (18), (21), (22) and (23);

2. A diploma or certificate of graduation from a two hundred (200) hour course of instruction from either:

a. A recognized school of massage as defined in Section 5.52.020 of this chapter, or

b. An existing school or institution of learning outside the state of California together with (i) a copy of the school's approval by its State Board of Education and (ii) a certified transcript of the applicant's school records showing date of enrollment, hours of instruction and graduation from a course having at least the minimum requirements prescribed by Chapter 21 (entitled "Private Postsecondary Education," Section 18,800 et seq.), of Division 1 (entitled "State Department of Education") of Title 5 of the California Code of Regulations; wherein the theory, method, profession and work of massage is taught,

c. This chapter shall not permit the issuance of temporary or trainee massage technician permits to persons who do not meet the requirements of this chapter;

3. If the massage technician will be employed at a fixed place of business, the massage establishment's full name, address and telephone number;

4. Such other identification and information shall be provided as required by the chief of police, as necessary to discover the truth of the matters specified and required in the application;

5. A certificate from a medical doctor licensed to practice in the state of California, including the physician's address and phone number, stating that the applicant has, within the thirty days immediately preceding the date of application, been examined and found to be free of any contagious or communicable disease capable of being transmitted to the public or to fellow employees. The testing for communicable disease, including Hepatitis B and Tuberculosis, or other medical conditions, is required to help prevent any conditions that could interfere with the massage technician's ability to engage in the practice of massage to the public in a safe and healthful manner due to the type of physical contact and interaction in the performance of the job of a massage technician. Pursuant to Health and Safety Code Section 199.20, and unless otherwise required by state or federal law, nothing in this chapter shall require testing or disclosure as to whether or not an applicant is infected with the human immunodeficiency virus (HIV);

6. The massage technician applicant has successfully passed a written examination administered by the chief of police wherein the applicant has been required to demonstrate a basic knowledge of anatomy, physiology, hygiene and massage. Additionally:

a. No applicant may take the test more than two times in a twelve month period,

b. Applicants who have written proof of their successful completion of the National Certification Board for Therapeutic Massage and Bodywork examination or the American Massage Therapist Association examination will not be required to take the additional written exam.

(Ord. 1243 § 2 (part), 1997)

The chief of police has up to sixty days after the submission of all required information to investigate the application and the background of the massage technician applicant. Upon the completion of the investigation, the chief of police may grant the permit, with or without conditions, if, upon review of the requirements listed in this chapter, all of the following are found:

A. The applicant has furnished an acceptable diploma or certificate of graduation from a recognized school in conformity with this chapter;

B. The applicant has furnished written proof from a recognized school that the minimum number of hours of instruction required by this chapter have been completed;

C. The applicant has successfully passed the written examination test required by this chapter;

D. The applicant has not made a material misrepresentation in the application;

E. The applicant has not been convicted of an offense involving conduct which requires registration under California Penal Code Section 290, or of conduct which is a violation of the provisions of California Penal Code Sections 266(i), 314, 315, 316, 318, 647(a) or 647(b) (as now written or as amended), or of crimes that are designated in Government Code Section 51032, or any other crime involving dishonesty, fraud, deceit, violence or moral turpitude; or that an injunction has not been issued under Penal Code Section 11225. Convictions under the laws of other states or countries which proscribe the same or similar conduct as the California crimes designated herein shall be considered;

F. The applicant or responsible officer has not had a massage establishment, off-premises massage service, massage technician, or other similar permit or license revoked, or suspended by the city, or any other state or local agency; or engaged in conduct or operated a massage or similar establishment in a manner that would be grounds for denial or revocation of a permit under this chapter; or violated any provision of this chapter, or of any similar ordinance, law, rule or regulation of any other public agency which regulates massage or the operation of massage establishments or owned or managed a massage or similar establishment where persons required to be licensed were allowed to work without the required licenses;

G. The applicant has paid the application fee and has provided the certificate of the business license tax paid to municipal services/business tax division of the finance department as required by Section 5.52.040 of the Municipal Code;

H. The applicant and the application are in compliance with the requirements of this chapter.

If, following investigation of the applicant, the chief of police cannot make the findings required in this section, the application shall be denied by dated, written notice which sets forth the reasons for denial. The applicant may appeal the denial as set forth in Section 5.52.220.

(Ord. 1243 § 2 (part), 1997)

Notification to the city of new massage technicians shall be as follows:

A. The holder of the massage establishment permit shall notify the chief of police, in writing, of the name and address of each person proposed to be employed as a massage technician at such establishment prior to the employee engaging in massage service to the public.

B. The requirements of this section are in addition to the other provisions of this chapter. Nothing contained herein shall relieve the permittee of the responsibility of ascertaining, prior to employment, that the person has a current unrevoked massage technician's permit.

(Ord. 1243 § 2 (part), 1997)

Renewal of permits, both for massage establishments and massage technicians shall be as follows:

A. Massage establishments and massage technician permits shall expire on the one-year anniversary date of issuance, unless sooner suspended or revoked.

B. At least thirty days prior to expiration of the one-year permit period, holders of the respective permit(s) shall apply for renewal. If the renewal request is not timely submitted, upon expiration of the year period for the permit, the permit shall be deemed expired and no privilege to provide massage shall exist until a new application has been approved. New medical certificates shall be submitted.

C. A renewal fee shall be paid in a sum that shall be determined from time to time by the city council by resolution to properly reflect cost recovery it deems appropriate.

D. The procedure for renewal shall be the same as for issuance of a new permit, except that, in lieu of resubmitting information previously provided in conjunction with the original permit applications, the applicant may submit a written statement, under penalty of perjury, identifying changes, if any, in any information submitted at the time of the original permit application.

E. Applicants for renewal must obtain a written statement from the chief of police that the permittee has not been convicted of violating this chapter or those sections of the Penal Code or Government Code listed in Section 5.52.070 since the permit was last issued.

F. The chief of police may deny renewal upon any of the grounds set forth in this chapter for denial or revocation of a new permit. The applicant may appeal the denial as set forth in Section 5.52.220.

(Ord. 1243 § 2 (part), 1997)

Pre-existing permits for massage establishments and massage technician shall be treated as follows:

A. The provisions of this chapter shall be applicable to all persons and businesses whether the business was established before or after the effective date of this chapter, except that a massage establishment legally in business prior to the effective date of this chapter shall have until the expiration of its current permit, or a period of six months from the effective date of this chapter, whichever is greater, to comply with the provisions of this chapter. An application for renewal of an existing massage establishment permit shall comply with the provisions of this chapter.

B. Massage technicians who have valid massage technician permits prior to the effective date of this chapter shall have until the expiration of their current permit, or a period of six months, whichever is greater, to comply with this chapter and to apply for a massage technician permit under the terms of this chapter.

(Ord. 1243 § 2 (part), 1997)

A. All massage establishments shall comply with any distance restrictions and zoning requirements applicable to massage establishments which the City may adopt now or hereafter as part of Title 17 of the Municipal Code.

B. Any massage establishment legally existing on the effective date of this chapter shall comply with any such zoning provisions within five years of the effective date of such zoning provisions. Any such use which at the expiration of such period is not in compliance with any applicable distance restrictions set forth in Title 17 shall at that time discontinue and abate its operation.

(Ord. 1243 § 2 (part), 1997)

Prohibited conduct shall include, but not be limited to the following prohibited conduct:

A. It is unlawful for: (1) any massage technician or other person present on the business premises to massage the genital area of any patron or (2) for any permittee of a massage establishment to allow or permit such massage.

B. It is unlawful for: (1) any massage technician to be other than fully clothed at all times in nontransparent clothing that does not expose their genitals, pubic area, buttocks or chest or (2) for any permittee of a massage establishment to allow or permit clothing that does not conform to this requirement.

C. It is unlawful for a massage technician to perform any massage services at any location other than that location specified on the technician's permit.

D. It is unlawful for any permittee of a massage establishment permit or holder of a massage technician permit to violate any of the requirements of this chapter.

(Ord. 1243 § 2 (part), 1997)

The chief of police may revoke or suspend a massage establishment permit or massage technician permit if any of the following are found:

A. The permittee does not possess the qualifications for the permit as required by this chapter;

B. The permittee has been convicted of any violation of the provisions of this chapter or any lesser included offense;

C. The permittee has made a material misrepresentation on the permit application or renewal; or

D. The permittee has operated the massage establishment in a manner or has engaged in conduct as a massage technician which violates any of the provisions of this chapter, any conditions of the permit, or any of the laws which would have been grounds for denial of the permit.

For purposes of this section, the permittee of a massage establishment permit shall include the responsible officer. Furthermore, the permittee shall be responsible for those acts of employees and massage technicians which are done in the course and scope of their employment.

(Ord. 1243 § 2 (part), 1997)

Denials, revocations and suspensions shall be administered as follows:

A. Whenever the chief of police has reasonable cause to believe that grounds for the denial, suspension or revocation of a permit exists, he or she shall give the holder of the permit written notice stating the alleged grounds for the denial, suspension or revocation and the effective date of the denial, suspension or revocation. This notice will be by certified mail, return receipt requested, sent to the address shown on the last application or renewal, or by personal service. The decision of the chief of police to deny, revoke or suspend a permit may be appealed to the city manager or designee. The applicant or permittee shall have ten days from the date of the notice within which to file an appeal with the city manager. The notice shall provide the permit holder with information on the appeal process.

B. Upon receipt of a request for an appeal hearing, the city manager or designee shall conduct a hearing within forty-five days of the request. The city manager or designee shall notify the permit holder in writing of the date, time and place of the hearing. The hearing shall not be less than ten days after the service of the notice of hearing by postage of the notice by certified mail, return receipt requested, or by personal service.

C. At the hearing, both the holder of the permit and the chief of police shall have the right to appear and be represented by counsel and to present evidence and arguments which are relevant to the grounds for the hearing. Within ten working days of the conclusion of the hearing, the city manager shall issue a written decision which states whether the decision of the chief of police is upheld, modified or reversed; the length of any suspension, and the effective date of the suspension or revocation. The decision of the city manager shall be served on the holder of the permit by certified mail, return receipt requested, or by person service.

D. The decision of the city manager shall be final.

E. Unless otherwise specifically prohibited by law, the burden of proof is on the permittee/applicant in any hearing or other matter under this chapter.

F. Upon a written decision of the city manager which denies, suspends or revokes a permit, the holder of the permit shall surrender the permit to the chief of police immediately after service of the notice of the decision.

(Ord. 1243 § 2 (part), 1997)

Pursuant to the city's prosecutorial discretion, the city may enforce violations of the provisions of this chapter as criminal, civil or administrative actions.

A. Infraction/Misdemeanor. Any person who violates any of the provisions of this chapter shall be guilty of an infraction or misdemeanor. Each and every day, or any part thereof, during which any such violation is committed, continued or allowed, shall be a separate offense.

B. Prosecution. Every violation of this chapter shall be a misdemeanor; provided, however, that where the city attorney has determined that such action would be in the best interest of justice, the city attorney may specify in the accursatory pleading or citation that the violation shall be prosecuted as an infraction.

C. Penalty for Infraction. Each and every violation of this chapter deemed an infraction is punishable by:

1. A fine not exceeding one hundred dollars for the first violation;

2. A fine not exceeding two hundred dollars for the second violation of the same or similar provision within one-year period; or

3. A fine not exceeding five hundred dollars for each additional violation, after the second, of the same or similar provision of this chapter within a one year period of the first violation.

D. Penalty for Misdemeanor. Each and every violation of this chapter which is deemed a misdemeanor is punishable of not more than one thousand dollars, or by imprisonment in the city or county jail for a period of not exceeding six months, or by both penalty and imprisonment.

E. Civil Penalties. Any person who violates any provisions of this chapter shall be civilly liable to the city in a sum up to one thousand dollars for the first day in which such violation occurs and for each additional day.

Any massage establishment operated, conducted or maintained contrary to the provisions of this chapter shall be unlawful and a public nuisance, and the city attorney may in the exercise of discretion, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings, for the abatement, removal and enjoinment thereof, in a manner provided by law.

(Ord. 1243 § 2 (part), 1997)