Del Mar Municipal Code Ch. 6.60 Massage Business

A. It is the purpose of this Chapter to provide for the orderly regulation of massage businesses.

B. It is unlawful for any person (including without limitation, a corporation, partnership, group or association) to commence, conduct, own, manage, operate, be in charge of, participate in, or sponsor a massage business in violation of any of the requirements of this Chapter.

(Ord. No. 661; Ord. No. 672; Ord. No. 862)

A. An exempt individual may commence, conduct, own, manage, operate, be in charge of, participate in, or sponsor a massage business without having an Operations Permit: Massage Business and without complying with the regulations of the other Sections of this Chapter, so long as all massages that are part of the individual's massage business:

1. Are administered under the control and direction of such exempt individual;

2. Are part of the performance of the exempt individual's profession or activity;

3. Are administered by a person who possesses a valid State Massage License or is exempt from such requirement; and

4. Are administered by a person who has obtained a Certificate of Registration: Massage Technician from the City pursuant to Chapter 6.61.

B. Exempt Individuals. So long as the requirements of Subsection A. are being met, for purposes of this Chapter, an "exempt individual" is one who is within one or more of the following categories:

1. Physicians, surgeons, chiropractors, osteopaths or physical therapists who are duly licensed to practice their respective professions in the State of California;

2. Registered Nurses, Practical Nurses and Licensed Vocational Nurses who are licensed to practice under the laws of this State;

3. Trainers of any amateur, semiprofessional or professional athlete or athletic team;

4. Barbers and beauticians who are duly licensed under the laws of this State;

5. Holistic health practitioners, while engaging in practices within the scope of their practice. "Holistic health practitioner" is a non-medical health care therapist who uses massage in a therapeutic approach to caring for patrons. The practice of such health care therapist may include other services such as nutritional assistance or counseling as long as all massage activities are directed toward health care. To qualify for this exemption, the person, prior to initiating the conduct of a massage business within the City, must first present themselves to the Issuing Authority to be registered and provide proof of:

a. Satisfactory completion of no less than 1,000 hours of instruction in such specialty or therapeutic approach at a school whose curriculum is accredited by the State of California;

b. Membership in a State or nationally chartered organization devoted to the specialty of therapeutic approach whose members are subject to a code of behavior that is effectively enforced against members by the organization and which requires participation in continuing education;

c. Evidence of passing a qualified written examination prepared by the Health Department and administered by the Sheriff establishing competency and ability of the applicant to engage in the practice of massage; and

d. Evidence of passing an examination prepared and conducted by the Health Department wherein the applicant shall be required to demonstrate a basic knowledge of anatomy, physiology, hygiene, and manual and mechanical massage;

6. Hospitals, nursing homes, sanitariums, or other health care facilities duly licensed by the State of California, while engaging in practices within the scope of their licenses; or

7. Employees of an accredited high school, junior college or college, while engaging in practices within the scope of their employment.

A. Upon giving the individual or entity notice, and an opportunity to be heard, an exemption specified in this Chapter may be denied or revoked by the City if the individual or entity:

1. Loses the license required to qualify for the exemption; or

2. There is a criminal conviction that, in accordance with the express provisions of this Chapter, authorizes the denial or revocation of an operations permit.

B. An exemption, which is denied or revoked due to a loss of a qualifying license, shall not be reinstated until one year after the full, unconditioned license is reobtained.

C. An exemption, which is revoked due to a criminal conviction, shall not be reinstated for a period of ten years.

D. An individual or entity whose exemption is denied or revoked is subject to all of the regulations in this Chapter.

A. Applicant means, in the case of:

Sole proprietor: The individual;

Partnership: Each individual partner;

Association: Each individual member; and

Corporation: Each officer, director, and holder of five percent or more of the corporation's stock.

B. Health Department means the Department of Environmental Health of the County of San Diego which serves as the City's Health Department.

C. Health Officer means the Health Officer of the County of San Diego, or his/her designees, that serves as the City's Health Officer.

D. Massage means any method of pressure on or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating of the external parts of the body with the hands or other parts of the body: (1) with or without the aid of any mechanical or electrical apparatus or appliances; and (2) with or without such supplementary aids as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointments, or other similar preparations.

E. Massage Business means a commercial activity involving, in whole or in part, the recurring giving or administering of massages. A massage business may involve, among other things:

1. A Massage Establishment which means a fixed location at which a massage business engages in or carries on a commercial activity involving, in whole or in part, the recurring giving or administering of massages on the premises; or

2. Off-Premises Massage Service which means the commercial activity of giving or administering massages other than at a massage establishment.

F. Massage Certificate of Registration means a Certificate of Registration issued to a Massage Technician by the City pursuant to Chapter 6.61 of this Code, also referred to as "Certificate of Registration: Massage Technician."

G. Massage Technician means any person who, for commercial purposes, gives or administers a massage to another person.

H. Massage Business Operator means any person (including without limitation, a corporation, partnership, group or association) who commences, conducts, owns, manages, is in charge of, participates in, or sponsors a massage business doing business within the City.

I. Patron means a person who is seeking or receiving a massage.

J. Recognized School of Massage means any school or institution of learning which teaches the theory, ethics, practice, profession, or work of massage, which school or institution has been approved pursuant to the California Education Code, and which requires a resident course of study of not less than 100 hours to be given in not less than six calendar months before the student shall be furnished with a diploma or a certificate of graduation. A school offering a correspondence course, but not requiring attendance, is not a "recognized school of massage."

K. Sheriff means the Sheriff of the County of San Diego which serves as the City's law enforcement agency.

L. Specified Anatomical Areas means pubic region, human genitals, perineum, anal region and the area of the female breast that includes the areola and the nipple.

M. State Massage License means a State of California license issued by the California Massage Therapists Council (CAMTC).

The City's Director of Finance is the Issuing Authority for Operations Permit: Massage Business.

A. An application shall be filed with the Issuing Authority no less than 45 days prior to the proposed date for the commencement of the massage business.

B. If, during the processing of the application, there is any change in information contained in the application, the applicant shall notify the Issuing Authority, in writing, within two days of such change.

The application for an Operations Permit: Massage Business shall set forth the exact nature of the massage services to be offered, the proposed place of business, the proposed massage establishment if any, and the name and address of each applicant. In addition to the foregoing, the applicant shall furnish the following information:

A. The two previous addresses of the applicant immediately prior to the present address of the applicant;

B. Written proof satisfactory to the Sheriff that the applicant is over the age of 18 years;

C. Applicant's height, weight, color of eyes and hair;

D. Two portrait photographs of the applicant, at least two inches by two inches;

E. Business, occupation, or employment history of the applicant for the five years immediately preceding the date of application;

F. The business license or permit history of the applicant: whether such person, in previously operating in this or another county, city or state, under license or permit, has had such license or permit suspended or revoked, the reason therefore, and the business activity or occupation subsequent to such suspension or revocation;

G. Whether the applicant has ever been convicted of any crime, except misdemeanor traffic violations. If any person mentioned in this subsection has been so convicted, a statement must be made giving the place and court in which such conviction occurred, the specific charge under which the conviction was obtained, the sentence imposed as a result of such conviction and the circumstances surrounding the crime for which the applicant was convicted;

H. Such other identification and information reasonably necessary for the City to discover the truth of the matters required to be set forth in this Section;

I. The Sheriff may take the fingerprints and additional photographs of the applicant, and may confirm the height and weight of the applicant; and

J. If the applicant is a corporation, the name of the corporation shall be set forth exactly as shown in its Articles of Incorporation, together with the names and residence addresses of each of its current officers, directors, and each stockholder holding more than five percent of the stock of the corporation, one of whom must be the applicant. If the applicant is a partnership, the application shall set forth the name and residence address of each of the partners, including limited partners, one of whom must be the applicant. If one or more of the partners is a corporation, the provisions of this section pertaining to corporate applicants apply.

Upon receipt of the application, the Issuing Authority shall collect the authorized processing fee. The Issuing Authority shall retain one photograph of the applicant to be attached to the permit. Then, the Issuing Authority shall deliver a copy of the application to the following:

A. To the Health Department to conduct an inspection of the premises of any proposed massage establishment and report on compliance with health related regulations.

B. To the Sheriff's Department to conduct a review and background check and report on the applicant's suitability under this Chapter. The Issuing Authority shall send one photograph of the permittee to the Sheriff.

C. To the Planning Department:

1. To determine the proposed activity's conformance to the City's land use regulations; and

2. To conduct an inspection of the premises of any proposed massage establishment and report on compliance with the facilities requirements of this Chapter and the Code.

A. The City Council, by resolution, shall establish application fees to cover the cost of processing applications and conducting pre-issuance inspections and investigations; and permit issuance fees for post issuance inspections and the enforcement of the provisions of this Chapter.

B. The amount of the fees shall include the charges fixed by the Health Department and Sheriff's Department for providing services to the City in the administration of this Chapter.

A. The Operations Permit: Massage Business shall:

1. Identify the permittee;

2. Identify the place of business;

3. Specifically permit off-premises massage service, if appropriate;

4. Impose conditions that are reasonable and necessary to the business's compliance with the regulations of this Code;

5. Specify a permit expiration date, one year from the date of issuance;

6. Expressly state that while the Operations Permit: Massage Business authorizes the business to be conducted, each person who gives or administers a massage as part of that business is required to have a State Massage License and Massage Certificate of Registration;

7. Require that the business maintain on its premises, for review upon request by the City or its designee, evidence that demonstrates that all persons providing massage services possess a State Massage License and Massage Certificate of Registration; and

8. Identify the massage establishment, if any, and state:

a. The maximum number of patrons for which the massage establishment can render on-site, simultaneous massages;

b. Whether the Operations Permit allows male and female patrons to be served simultaneously;

c. The number of employees needed to serve the maximum number of patrons for which the massage establishment can render on-site, simultaneous massages; and

d. Whether the Operations Permit allows for male and female employees to be on premises simultaneously.

B. No Operations Permit: Massage Business shall be issued until the Issuing Authority has been notified in writing by the Health Department, the Sheriff, and the Planning Department that the applicant has fulfilled the requirements of this Title.

A. In addition to failing to comply with any standard stated in this Chapter and Title, the Issuing Authority may deny the application for a permit or revoke an issued permit if it is found that:

1. Within five years immediately preceding the date of the filing of the application, the applicant, or when the applicant is a corporation, partnership, or other entity any of its officer, directors, holders of five percent or more of the corporation's stock or partners has been, or during the term of an issued permit is:

a. Adjudged to be a mentally disordered sex offender with a duty to register with the Sheriff or Chief of Police under Section 290 of the Penal Code;

b. Convicted of a crime related to the conduct of a massage business or which is not consistent with satisfying the obligation of creating and maintaining a safe and healthy environment for administering massages;

c. Convicted of a violation of Section 314 (Indecent Exposure), 315 (Keeping or Residing in a House of Ill-Fame), 316 (Keeping a Disorderly House—Disturbing the Peace), 647(a) (Soliciting or Engaging in Lewd or Dissolute Conduct in a Public Place), or 647(b) (Soliciting or Engaging in Prostitution) of the Penal Code, or convicted in another state of any offense which, if committed or attempted in this State, would have been punishable as one or more of the heretofore mentioned offenses; or

d. Shown, by a preponderance of the evidence, to have violated the elements of one or more of the crimes listed in the previous Subsection;

2. In applying for the permit, the applicant provided false or materially misleading information or concealed information relevant to the City's decision to issue the permit;

3. The applicant or permittee is not in compliance with the regulations of this Code;

4. An employee of the applicant/permittee is, or within five years has been, convicted of a crime identified in Subsection 1. above; or

5. The applicant or permittee has had a permit or license for a massage business, or similar type of business, revoked or denied by a government agency and has not shown a significant and material change in circumstance since the revocation or denial.

B. An application for a permit may be denied if there is a criminal charge pending against the applicant, unless the applicant has been previously operating a massage business in accordance with a permit issued under this Chapter and is applying for a subsequent permit to continue operating such business.

It is unlawful for any person (including without limitation, a corporation, partnership, group or association) to commence, conduct, own, manage, operate, be in charge of, participate in, or sponsor a massage establishment which is not in full compliance with the following regulations:

A. Permit.

1. A Massage Business Operator shall only operate a massage establishment that is identified in, and in full compliance with, the terms of a validly issued, unexpired, and unrevoked Operations Permit: Massage Business held by the Massage Business Operator.

2. No massage establishment shall be open for business without at least one massage technician holding a current, unrevoked State Massage License and Massage Certificate of Registration being on the premises.

B. Establishment Not a School. A massage establishment shall not be operated as a school of massage, or use the same facilities as that of a school of massage.

C. Alcohol or Drugs.

1. No Massage Business Operator shall permit a person to be or remain in any part of a massage establishment while such person is in the possession of, consuming, using or under the influence of any alcoholic beverage or drug, except pursuant to a doctor's prescription.

2. It is unlawful for any person to be or remain in any part of a massage establishment while in the possession of, consuming, using or under the influence of any alcoholic beverage or drug, except pursuant to a doctor's prescription.

D. Access To Establishment.

1. Each entrance to the massage establishment, regularly used by the public for ingress or egress to such establishment, shall remain unlocked during business hours unless all clients and staff are behind closed doors and no staff are available to assure security for those clients and staff.

2. The Massage Business Operator, as a condition of applying for a Massage Business Operator permit, shall allow City Officials to enter the massage establishment from time to time for the purpose of making reasonable inspections to observe and enforce compliance with applicable regulations, laws and the provisions of this Chapter and Code.

E. Facilities To Serve Patrons. Based upon the maximum number of patrons for which the massage establishment can simultaneously render on-premises massages, there shall be:

1. One or more dressing rooms for the exclusive use of patrons with sufficient capacity to serve the maximum number of patrons;

2. A minimum of one separate locker for each patron, capable of being locked by the patron, with sufficient size and strength to protect the clothing and valuables of the patron;

3. A minimum of one shower or tub for each six patrons, or portion thereof;

4. A separate massage room for each patron;

5. In those establishments where steam room or sauna baths are provided, if the Operations Permit allows male and female patrons to be served simultaneously, separate steam rooms or sauna rooms shall be provided to each sex. Each steam room and sauna shall be clearly designated as being for a particular sex; and

6. For every six patrons, or portion thereof: one toilet and one wash basin located together, within or as close as practicable to the area devoted to giving or administering the massage.

a. If the Operations Permit allows male and female patrons to be served simultaneously, separate toilets shall be provided to each sex. Each toilet shall be clearly designated as being for a particular sex.

b. The provision of each required wash basin shall include, at all times: (1) hot and cold running water provided through a mixing faucet; (2) hand washing soap or detergent immediately available in a permanent, wall mounted dispenser; and (3) sanitary towels immediately available in a permanent, wall mounted dispenser.

F. Facilities for Employees. Based upon the number of employees needed to serve the maximum number of patrons for which the massage establishment can render on-site, simultaneous massages, there shall be, for the exclusive use of massage establishment employees:

1. One or more dressing rooms with sufficient capacity to serve the employees;

2. A minimum of one separate locker for each employee, capable of being locked by the employee, with sufficient size and strength to protect the clothing and valuables of each employee;

3. A minimum of one shower or tub for each six employees, or portion thereof;

4. A minimum of one separate wash basin for each four employees. This wash basin shall be separate from wash basins located in toilet rooms. The provision of each required wash basin shall include, at all times: (a) hot and cold running water provided through a mixing faucet; (b) hand washing soap or detergent immediately available in a permanent, wall mounted dispenser; and (c) sanitary towels immediately available in a permanent, wall mounted dispenser; and

5. For every six employees, or portion thereof: one toilet and one wash basin located together, within or as close as practicable to the area devoted to giving or administering the massage.

a. If the Operations Permit allows for male and female employees to be on premises simultaneously, separate toilets shall be provided to each sex. Each toilet shall be clearly designated as being for a particular sex.

b. The provision of each required wash basin shall include, at all times: (1) hot and cold running water provided through a mixing faucet; (2) hand washing soap or detergent immediately available in a permanent, wall mounted dispenser; and (3) sanitary towels immediately available in a permanent, wall mounted dispenser.

G. Lighting.

1. At a minimum, lighting shall be provided in accordance with Article 220 of the National Electric Code.

2. During the operation of the massage business, a light level of no less than five foot candles shall be maintained at every point within in each room or enclosure where massage services are given or administered.

3. At least one artificial light of not less than 40 watts shall be provided in each room or enclosure of the establishment capable of being occupied by a person.

H. Maintenance.

1. All walls, ceilings, floors and facilities for the establishment shall be in good repair and maintained in a clean and sanitary condition.

2. At least twice each day that the establishment is in operation, wet and dry heat rooms, steam or vapor rooms, steam or vapor cabinets, shower compartments and toilet rooms, shall be thoroughly cleaned and disinfected with a disinfectant approved by the Health Department.

3. After each use, before the next use, showers and bathtubs shall be thoroughly cleaned and disinfected with a disinfectant approved by the Health Department.

4. At least twice each day that the establishment is in operation, the entire premises shall be cleaned with a disinfectant approved by the Health Department.

5. The Massage Business Operator shall prepare or cause to be prepared a written record of the cleaning and disinfecting, using a form which has first been approved by the Issuing Authority. Entries shall be made into the record within five minutes of the completion of the cleaning or disinfecting event being recorded.

The Massage Business Operator shall maintain such records for a period of no less than one year from the date of the entry; and shall make these records available for inspection, on demand, by City officials charged with enforcement of this Chapter. The City shall keep the furnished information confidential for use only in enforcement. Any unauthorized disclosure or use of such records is unlawful. It is unlawful to place false information into the records required to be kept by this subsection.

I. Massage Service Area.

1. No massage service shall be rendered within any cubicle, room, booth or any area within a massage establishment which is fitted with a door capable of being locked.

2. Surfaces upon which massage service is rendered shall be covered in a workmanlike manner with durable washable plastic or other waterproof material acceptable to the Health Department as being safe for public use.

3. No person other than the patron receiving a massage and a massage technician who possesses a current and unrevoked certificate, shall be within a room wherein a massage is being given.

J. Rooms Containing Steam Room, Tub, Shower, or Toilet. In rooms containing a steam room, tub, shower, or toilet:

1. A waterproof floor covering shall be provided which extends up the walls at least six inches and shall be covered at the floor-wall juncture with at least a ⅜-inch radius; and

2. Walls shall be: (a) smooth; (b) waterproof; and (c) colored so as to provide a light reflectance value of no less than 70 percent.

K. Signs.

1. At the main entrance of the massage establishment, in compliance with the sign regulations of this Code, a recognizable and legible sign shall be posted which identifies the premises as a massage establishment.

2. Within the massage establishment, in an open and conspicuous public place on the premises, the Massage Business Operator shall post and at all times maintain a list of services available and the cost of such services. The services shall be described in readily understandable language.

L. Towels.

1. Based upon the maximum number of patrons for which the massage establishment can render on-site, simultaneous massages, there shall be, at all times of operation, five towels for each patron, available for the personal use of the patron. Such towels shall be clean, freshly laundered and disinfected.

2. Upon request of the patron, the patron shall be provided with clean, sanitary, and disinfected towels and linen or other covering for the surface upon which the massage is given.

3. Based upon the number of employees required to serve the maximum number of patrons for which the massage establishment can render on-site, simultaneous massages, there shall be, at all times of operation, five towels for each employee, available for the personal and exclusive use of the employee. Such towels shall be clean, freshly laundered and disinfected.

4. Towels shall not be reused without first having been laundered and disinfected. Disposable towels and coverings shall not be reused.

5. Concurrent or consecutive use of a towel by two or more persons, without laundering and disinfecting between use, is prohibited.

M. Linen or Other Coverings.

1. Based upon one surface for rendering massage service to each patron for which the massage establishment can render on-site, simultaneous massages, there shall be, at all times of operation, three sets of linen/other coverings for each such surface, available for use. Such items shall be clean and freshly laundered.

2. Linen/other coverings shall not be reused without first having been laundered and disinfected. Disposable coverings shall not be reused.

3. Heavy white paper may be used as "other coverings" provided that such paper is used only once and then discarded into a sanitary receptacle.

N. Storage.

1. Closed cabinets shall be provided with sufficient capacity to store all required clean linens, towels and coverings.

2. All required clean linens, towels and coverings shall be stored in closed cabinets.

3. Closed receptacles shall be provided with sufficient capacity to store used towels, linens and other coverings.

4. All used towels, linens and other coverings on the premises shall be stored in closed receptacles.

O. Ventilation. In addition to providing the ventilation required by the Uniform Building Code, to allow for adequate ventilation in cubicles, rooms and areas provided for patron's use, which are not serviced directly by required window or mechanical systems of ventilation, partitions within the massage establishment shall be constructed so that the height of partitions does not exceed, at any point, 75 percent of the floor-to-ceiling height at the point of measurement.

P. Employee Clothing.

1. During business hours, each massage establishment employee on the premises shall, when located in an area used by the patrons or which can be viewed by patrons, be clothed so as to be fully covered from a point not to exceed four inches above the center of the kneecap to the base of the neck, excluding the arms. Except, shorts may be worn so long as the shorts extend down the leg a minimum of three inches from the crotch and the body above that point is fully covered to the base of the neck, excluding the arms.

2. The covering, which includes trousers, pants or shorts, must be an opaque material and be maintained in a clean and sanitary condition.

3. During business hours, each massage establishment employee on the premises shall, when located in an area used by the patrons or which can be viewed by patrons, shall be clothed so that the employee's specified anatomical areas are covered from view.

Q. Instruments. Within the massage establishment:

1. There shall be available a sufficient quantity of disinfecting agents and equipment, approved by the Health Department, for disinfecting instruments used in giving or administering a massage.

2. No instrument shall be used in giving or administering a massage unless the instrument is first disinfected using methods, disinfecting agents and equipment approved by the Health Department.

R. Control of Services. Within the massage establishment, the Massage Business Operator shall not allow any person:

1. To offer to perform, or perform any service other than those posted in accordance with this Chapter;

2. To give or administer, or offer to give or administer, a massage unless the person is in possession of, and is in full compliance with the terms of, a validly issued, unexpired, and unrevoked State Massage License and a Massage Certificate of Registration;

3. To massage or intentionally touch a Specified Anatomical Area of another person; or

4. To give or administer, or offer to give or administer, a massage in violation of one or more the regulations of this Title.

It is unlawful for a Massage Business Operator to provide, or offer to provide an off-premises massage service unless:

A. The massage is to be given or administered between the hours of 7:00 a.m. and 12:00 a.m. midnight;

B. The massage technician is in possession of, and is in full compliance with the terms of, a validly issued, unexpired, and unrevoked State Massage License and a Massage Certificate Registration;

C. The massage technician is working as part of a massage business which is in possession of, and is in full compliance with the terms of, a validly issued, unexpired, and unrevoked Operations Permit: Massage Business;

D. The massage is offered to be given or administered in full compliance with the regulations of this Title;

E. The massage is given or administered in full compliance with the regulations of this Title; and

F. Before the massage is given or administered, the massage technician presents to the patron a written document which lists the services available and the cost of such services. The services shall be described in readily understandable language.