Fremont Municipal Code Art. III Massage Establishments

(a) On and after April 11, 2016, it shall be unlawful for any person or persons to operate a massage establishment within the city without first obtaining a massage establishment permit pursuant to the requirements of this chapter.

(b) Where the operator is not the property owner, as shown on the latest county assessment roll, of the property where the massage establishment is to be operated, then upon issuance of a massage establishment permit, the finance director may send a written notice to the property owner advising of the issuance of the permit and of the regulations applicable to the massage establishment and the property pursuant to this chapter. Any other notices sent to the operator pursuant to this chapter at any time before or after issuance of the massage establishment permit may also be sent to the property owner.

(c) On and after April 11, 2016, it shall be unlawful for any massage establishment operator within the city to employ or retain any person to practice or perform massage therapy or outcall massage services for compensation unless that person is a certified massage therapist or a city permitted massage therapist. For purposes of this chapter, a massage establishment operator “employs or retains” a person to practice massage therapy or outcall massage services for compensation when:

(1) That person is a directly paid employee of the massage establishment; or

(2) That person’s association with a massage establishment is that of an independent contractor who receives compensation for massage therapy provided to patrons of the massage establishment; or

(3) That person receives a referral of patrons from the massage establishment and, at any time before or after the referral, arranges in any way for compensation to flow to the massage establishment operator (regardless of whether the parties involved acknowledge that compensation is flowing in exchange for the referral, or whether such parties record such compensation in their financial records). (Ord. 20-2015 § 1, 10-13-15.)

(a) Application for Massage Establishment Permits. All owners of the massage establishment, or their duly authorized agent(s), shall file an application for a massage establishment permit on a form provided by the finance director. For purposes of this section, the “applicant” for the operator shall refer to and include each and every owner of the massage establishment. The application shall include the following information:

(1) The name, address, and telephone number of the massage establishment.

(2) The name, residence address and telephone number, and business address and telephone number of the massage establishment operator(s) applying for the massage establishment registration certificate.

(3) The form of business under which the applicant will be conducting the massage establishment, i.e., corporation, general or limited partnership, limited liability company, or other form. If the operator 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 officers, directors, and each shareholder holding more than five percent of the stock of the corporation. If the operator is a general or limited partnership, the application shall set forth the name and residence address of each of the partners, including limited partners. If one or more of the partners is a corporation, the provisions of this section pertaining to a corporate operator shall apply. If the operator is a limited liability company, the application shall set forth the name and residence address of each of the members. If one or more of the members is a partnership, limited liability company, or corporation, the provisions of this section pertaining to a partnership, limited liability company, or corporate applicant shall apply, as applicable.

(4) The name and address of the owner of the real property upon, in, or from which the certified massage establishment is to be operated. In the event the operator is not the legal owner of the property, the application shall be accompanied by a copy of any written lease between the operator and the property owner authorizing use of the premises for a massage establishment, or, alternatively, if there is no written lease, then a written, notarized acknowledgment from the property owner that the property owner has been advised that a massage establishment will be operated by the operator upon, in, or from the property owner’s property.

(5) A description of the proposed massage establishment, including the type of treatments to be administered.

(6) The name, residence address, telephone number, and work address and telephone number of each person that the massage establishment employs or retains to perform massage therapy for compensation.

(7) For each person that the massage establishment does or will employ or retain to perform massage therapy for compensation, a copy of that person’s current certification from the California Massage Therapy Council as a certified massage therapist or as a certified massage practitioner and a copy of that person’s California Massage Therapy Council-issued identification card and a copy of the city registration certificate or a copy of the massage therapist permit issued by the city for each certified massage therapist.

(8) For each owner of the certified massage establishment, a copy of that person’s current certification from the California Massage Therapy Council as a certified massage therapist or as a certified massage practitioner and a copy of that person’s California Massage Therapy Council-issued identification card, if applicable.

(9) Whether any license or permit has ever been issued to the applicant by any jurisdiction under the provisions of any ordinance or statute governing massage practice, and as to any such license or permit, the name and address of the issuing authority, the effective dates of such license or permit, whether such license or permit was ever suspended, revoked, withdrawn, or denied; and copies of any documentary materials relating to such suspension, revocation, withdrawal, or denial.

(b) Application Fee. Any application for a massage establishment permit under this chapter shall be accompanied by a nonrefundable application fee in an amount established by resolution of the city council.

(c) Term. A massage establishment permit issued pursuant to the terms of this chapter shall be valid for a term of one year from the date of issuance, and, unless suspended or revoked, shall be renewed annually upon application by the massage establishment operator so long as the massage establishment is operating within the city.

(d) Requirement to Amend Massage Establishment Permit Application. Whenever the information provided in the application for massage establishment permit on file with the city changes, for example by a change in employees, the operator shall, within 10 business days after such change, file an amendment to the massage establishment permit application with the finance director to reflect such change. (Ord. 20-2015 § 1, 10-13-15.)

(a) The finance director may deny a massage establishment permit application for one or more of the following reasons:

(1) The application is incomplete and the required supplementary documents were not submitted within 20 days of a request for these documents by the finance director. An applicant whose application is denied for failure to comply with this subsection is not eligible to reapply for one year;

(2) The applicant made a material misstatement or omission in the application or in a previous application. If the finance director finds substantial evidence that an application contains a knowing or intentional material misstatement or omission, the finance director must deny the application. If the finance director determines that an applicant made a material misstatement or omission, the applicant is not eligible to apply for a certificate under this chapter for one year from the date the application is denied, but if the applicant made a knowing or intentional material misstatement or omission, the applicant is not eligible to reapply for five years;

(3) The massage establishment, as proposed by the applicant, would not comply with all applicable laws including, but not limited to, the provisions of this code. An applicant whose application is denied for failure to comply with this subsection is not eligible to reapply for one year;

(4) The applicant proposes to locate the massage establishment in the same building as a massage establishment that surrendered its permit or had its permit revoked within 10 years of the application date because a person engaged in any criminal conduct and/or violation of this chapter while on the premises of the massage establishment. This subsection does not apply to renewal applications;

(5) The applicant, or any shareholder, partner, or member of the applicant, within five years immediately preceding the date of filing of the application, has been convicted in a court of competent jurisdiction of any offense that relates directly to the operation of a massage establishment whether as a massage establishment owner or operator or as a person practicing massage for compensation, or as an employee of either; or has at any time been convicted in a court of competent jurisdiction of any felony the commission of which occurred on the premises of a massage establishment;

(6) Any of the conditions for denial of the massage therapist permit as stated in Section 5.65.060 would apply;

(7) The applicant, if an individual, has not attained the age of 18 years; or

(8) The applicant, or any shareholder, partner, or member of the applicant, within five years of the date of application, and as established by clear and convincing evidence, has engaged in acts prohibited under Cal. Penal Code § 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22.

(b) If prosecution is pending against the applicant for either conduct violating this chapter’s provisions or conduct violating Cal. Bus. & Prof. Code § 4600 et seq., the finance director may postpone its decision on the application until the prosecution’s final resolution. As used in this subsection, “prosecution” means charges filed by the district attorney, administrative proceedings brought by a local government or agency, or a civil or criminal action maintained by the city of Fremont city attorney. (Ord. 20-2015 § 1, 10-13-15.)

(a) In addition to any other remedy available to the city under this code or state law, a massage establishment permit may be suspended or revoked by the finance director where it is found by substantial evidence that any of the following have occurred:

(1) The permittee, or any person employed or retained by the massage establishment, has been found to have violated any provision of this chapter; or

(2) Any of the conditions for denial of the massage establishment permit as listed in Section 5.65.090 or any of the conditions for suspension or revocation of a massage therapist permit as listed in Section 5.65.060 would apply; or

(3) The permittee has been subject to a permanent injunction against the conducting or maintaining of a nuisance pursuant to this code, or Cal. Penal Code §§ 11225 through 11235, or any similar provision of law in any jurisdiction outside the state of California; or

(4) The operator or any employee of the massage establishment has engaged in fraud or misrepresentation or has knowingly made a misstatement of material fact while working in or for the massage establishment; or

(5) The permittee has continued to operate the massage establishment after the operator permit has been suspended; or

(6) Massage treatments are or have been performed on the premises of the massage establishment, with or without the permittee’s actual knowledge, by any person who is not a duly authorized certified massage therapist or obtained a massage therapist permit; or

(7) There have been one or more incidents prohibited under Cal. Penal Code § 266, 266a, 266e, 266f, 266g, 266h, 266i, 266j, 315, 316, 318, 647(b), or 653.22 taking place on the premises of the massage establishment, whether or not any criminal prosecution has been pursued or conviction obtained for such acts, and whether or not they occurred with or without the actual knowledge of the certificate holder; or

(8) The permittee or any person employed or retained by the massage establishment or any other person on the premises of the massage establishment has engaged in conduct or committed acts that a reasonable person in the patron’s position would understand as an offer to perform on or engage in with the patron acts that are sexual in nature or that involve touching of the genitals, pubic area, anus, and/or areola.

(b) Upon revocation of a massage establishment permit, the massage establishment shall immediately cease operation, and, if so ordered by the finance director, no other massage establishment shall be permitted to operate at that location by any person for a period of 10 years. If the operator is not also the legal owner of the real property on which the massage establishment is situated, notice of such revocation and the period of prohibition shall be provided by the finance director to the owner of record of the property as shown on the latest county assessment roll.

(c) Notice of Denial – Appeal. If an application for a massage establishment permit is denied pursuant to this section, the finance director shall serve on the applicant by first class mail, postage prepaid, a written notice of denial which shall specify the grounds for the denial and shall indicate the appeal procedures as set forth in Section 5.65.160. (Ord. 20-2015 § 1, 10-13-15.)

(a) The finance director or his/her designee shall have the right to enter any massage establishment during regular business hours, without a search or inspection warrant, to make reasonable inspection to ascertain whether there is compliance with the provisions of this chapter.

(b) The massage establishment operator shall take immediate action to correct each violation noted by the finance director or his/her designee. A reinspection will be performed within 30 days to ensure that each violation noted in the inspection has been corrected. (Ord. 20-2015 § 1, 10-13-15.)

(a) Operational Requirements. Except as otherwise specifically provided in this chapter, on and after April 11, 2016, the following operational requirements shall be applicable to all massage establishments located within the city:

(1) No massage establishment shall be kept open for business between the hours of 10:00 p.m. and 7:00 a.m. A massage begun any time before 10:00 p.m. must nevertheless terminate at 10:00 p.m. The hours of operation of the massage establishment shall be displayed in a conspicuous public place in the reception area and in any front window clearly visible from outside of the massage establishment.

(2) Patrons and visitors shall be permitted in the massage establishment only during the hours of operation.

(3) The operator of the massage establishment must designate or employ a massage establishment administrator to be in charge of the operation of the business during all times that the operator is not personally managing the business. The name of the person currently in charge of the massage establishment must appear in the records of services described in subsection (a)(10) of this section. Either the owner/operator or the administrator must be present at the massage establishment at all times during business hours that:

(A) Any massage establishment personnel other than a single receptionist is present at the massage establishment; or

(B) Any member of the public is in any room of the massage establishment other than the retail portion or reception area.

(4) Except for a patron who is inside a massage therapy room for the purpose of receiving a massage, no patrons or visitors shall be permitted in or on the massage establishment premises at any time who are not fully clothed in outer garments of nontransparent material, or who display or expose themselves in underclothing, sheer clothing or similar intimate apparel.

(5) During the hours of operation, visitors shall not be permitted in massage therapy rooms except as follows: (A) the parents or guardian of a patron who is a minor child may be present in the massage therapy room with that minor child; (B) the minor child of a patron may be present in the massage therapy room with the patron when necessary for the supervision of the child; and (C) the conservator, aide, or other caretaker of a patron who is elderly or disabled may be present in the massage therapy room with that elderly or disabled person.

(6) During the hours of operation, patrons shall be permitted in massage therapy rooms only if at least one duly certified massage therapist or city permitted massage therapist is present on the premises of the massage establishment.

(7) A list of services available and the cost of such services shall be posted in an open and conspicuous public place on the premises. The services shall be described in English and may also be described in such other languages as may be convenient. No massage establishment operator shall permit, and no person employed or retained by the massage establishment shall offer to perform, any services or fees other than those posted.

(8) The massage establishment permit and a copy of the CAMTC certificate or the city permit of each massage therapist employed or operating in the massage establishment must be conspicuously displayed in the facility such that it can easily be seen by anyone entering the establishment.

(9) Customers must pay for massage services at the reception counter. All tips, if any, must be received at the reception counter.

(10) Records of services provided to each patron must be maintained and retained for one year from the date of service. Records of services shall include the name and address of the patron, the name of the massage therapist, the name of the massage administrator, the type of service provided, the time the service began and ended and the amount paid for the services including the tip.

(b) Physical Facility and Building and Fire Code Requirements. Except as otherwise specifically provided in this chapter, on and after April 11, 2016, the following physical facility and building code requirements shall be applicable to all massage establishments located within the city:

(1) Front Door and Reception/Waiting Area Required. One front door shall be provided for patron entry to the massage establishment, which shall open to an interior patron reception and waiting area immediately inside the front door. All patrons and any persons other than individuals employed or retained by the massage establishment shall be required to enter and exit through the front door of the establishment. The front door shall remain unlocked during business hours, except if the massage establishment is only owned by one person with one or no employees or independent contractors.

(2) No massage establishment located in a building or structure with exterior windows fronting a public street, highway, walkway, or parking area shall block visibility into the interior reception and waiting area through the use of curtains, closed blinds, tints, or any other material that obstructs, blurs, or unreasonably darkens the view into the premises.

(3) All interior doors, including massage therapy rooms or cubicles, but excluding individual dressing rooms and toilet rooms, shall be incapable of being locked and shall not be blocked to prevent opening. Draw drapes, curtain enclosures, or accordion-pleated closures without a locking mechanism in lieu of doors are acceptable on all inner massage therapy rooms or cubicles.

(4) Minimum lighting equivalent to at least one 40-watt light shall be provided in each massage therapy room or cubicle.

(5) Minimum ventilation must be provided in accordance with applicable building code provisions.

(6) A massage table shall be used for all massage therapy, with the exception of “Thai,” “shiatsu,” and similar forms of massage therapy, which may be provided on a padded mat on the floor, provided the patron is fully attired in loose clothing, pajamas, scrubs, or similar style of garment. Massage tables shall have a minimum height of 18 inches. Beds, futons, mattresses, and waterbeds are not permitted on the premises of the massage establishment, and no massage establishment shall be used for residential or sleeping purposes.

(7) All locker facilities that are provided for the use of patrons shall be fully secured for the protection of the patrons’ valuables, and each patron shall be given control of the key or other means of access.

(8) The massage establishment must not be used for residential or sleeping purposes unless the massage establishment is properly zoned and has all necessary use and building permits, and the massage establishment is owned by one individual with one or fewer employees or independent contractors.

(9) The massage establishment shall comply with all applicable state and local building standards (as adopted in Title 15) and the fire code (as adopted in Title 15).

(c) Health and Safety Requirements. Except as otherwise specifically provided in this chapter, on and after April 11, 2016, the following health and safety requirements shall be applicable to all massage establishments located within the city:

(1) The massage establishment shall at all times be equipped with an adequate supply of clean sanitary towels, coverings, and linens, and all massage tables shall be covered with a clean sheet or other clean covering for each patron. After a towel, covering, or linen has been used once, it shall be deposited in a closed receptacle and not used again until properly laundered and sanitized. Towels, coverings, and linens shall be laundered either by regular commercial laundering, or by a noncommercial laundering process that includes immersion in water at least 140 degrees Fahrenheit for not less than 15 minutes during the washing or rinsing operation. Clean towels, coverings, and linens shall be stored in closed, clean cabinets when not in use.

(2) All massage therapy rooms or cubicles, wet and dry heat rooms, toilet rooms, shower compartments, hot tubs, and pools shall be thoroughly cleaned and disinfected as needed, and at least once each business day when the premises are open and such facilities are in use. All bathtubs shall be thoroughly cleaned and disinfected after each use.

(3) All liquids, creams, or other preparations used on or made available to patrons shall be kept in clean and closed containers. Powders may be kept in clean shakers. All bottles and containers shall be distinctly and correctly labeled to disclose their contents. When only a portion of a liquid, cream, or other preparation is to be used on or made available to a patron, it shall be removed from the container in such a way as not to contaminate the remaining portion.

(4) No invasive procedures shall be performed on any patron. Invasive procedures include, but are not limited to:

(A) Application of electricity that contracts the muscle;

(B) Penetration of the skin by metal needles;

(C) Abrasion of the skin below the nonliving, epidermal layers;

(D) Removal of skin by means of any razor-edged instrument or other device or tool;

(E) Use of any needle-like instrument for the purpose of extracting skin blemishes;

(F) Other similar procedures.

(5) All bathrobes, bathing suits, and/or other garments that are provided for the use of patrons shall be either fully disposable and not used by more than one patron, or shall be laundered after each use pursuant to subsection (c)(1) of this section.

(6) All combs, brushes, and/or other personal items of grooming or hygiene that are provided for the use of patrons shall be either fully disposable and not used by more than one patron, or shall be fully disinfected after each use.

(7) No patrons shall be allowed to use any shower facilities of the massage establishment unless such patrons are wearing slip-resistant sandals or flip-flops while in the shower compartment. All footwear such as sandals or flip-flops that are provided for the use of patrons either shall be fully disposable and not used by more than one patron, or shall be fully disinfected after each use.

(8) The patron’s genitals, anus, and female breasts must be fully draped at all times while any individual employed or retained by the massage establishment to practice massage for compensation, or any other employee or operator of the massage establishment, is in the massage therapy room or cubicle with the patron. No massage therapy shall be provided to a patron that results in intentional contact, or occasional and repetitive contact, with the genitals or anus of a patron and shall not be provided massage to female breasts without the written consent of the person receiving the massage and a referral from a licensed California health care provider.

(9) No alcoholic beverages shall be sold, served, or furnished to any patron in violation of any state law or regulation; nor shall any alcoholic beverages be kept or possessed on the premises of a massage establishment unless the establishment maintains an Alcohol Beverage Control license or permit in good standing.

(d) Attire and Physical Hygiene Requirements. On and after April 11, 2016, the following attire and physical hygiene requirements shall be applicable to all employees and any other persons who work permanently or temporarily on the premises of a massage establishment within the city, including, but not limited to, all persons who are employed or retained to practice massage or bodywork for the massage establishment:

(1) All persons shall wear clean and sanitary outer garments at all times. All outer garments shall be of a fully opaque, nontransparent material and shall constitute professional attire based on the custom and practice of the profession in California. While engaged in massage for compensation, therapists shall not violate Cal. Penal Code § 314 or dress in a manner that exposes the therapists’ breasts, buttocks or genitals, or in swim attire, unless providing a water-based massage modality.

(2) No massage establishment operator, employee, or visitor shall, while on the premises of a massage establishment or while performing any outcall massage service, and while in the presence of any patron, customer, employee or visitor, expose his or her genitals, buttocks, or chest.

(3) All persons shall thoroughly wash their hands with soap and water or any equally effective cleansing agent immediately before providing massage therapy to a patron. No massage therapy shall be provided upon a surface of the skin or scalp of a patron where such skin is inflamed, broken (e.g., abraded or cut), or where a skin infection or eruption is present.

(e) Display of Permit and Certifications. Each person employed or retained by a massage establishment to perform massage therapy in or on the premises or through an outcall massage service shall display on his or her person a copy of the valid photograph-bearing identification card issued to that employee by the California Massage Therapy Council pursuant to Cal. Bus. & Prof. Code § 4600 et seq. A copy of each such identification card shall also be displayed in an open and conspicuous place visible from the entrance and/or reception and waiting area of the massage establishment. The home address of any employee need not be displayed.

(f) Advertisements. All advertisements for a massage establishment must reflect the professional nonsexual nature of the business. An operator or any person acting on behalf of the operator must not place, publish or distribute or cause to be placed, published or distributed any advertising matter regarding the massage establishment that contains text, or depicts any portion of the human body, that would reasonably suggest to prospective clients that a service is available that is not a legitimate, recognized massage service. (Ord. 20-2015 § 1, 10-13-15.)

No person permitted to operate a massage establishment under this chapter shall operate under any name or conduct business under any designation not specified in the massage establishment operator certificate and city business tax certificate. Upon a change of location of a massage establishment where there is no change of massage establishment owner(s), an application for an amended massage establishment operator certificate shall be made to the finance director, and such application shall be granted, provided all applicable provisions of this code are complied with as to the new location. (Ord. 20-2015 § 1, 10-13-15.)

Upon a sale or transfer of any massage establishment, or upon the sale or transfer of some or all of the interest of any massage establishment owner to a person who is not already an owner of the massage establishment, a new massage establishment operator certificate shall be required. Any new owners must submit a new application to the city. (Ord. 20-2015 § 1, 10-13-15.)

(a) General Requirement. An owner of a massage establishment must apply to the finance department (for referral to the police department) for annual investigation of the applicant’s background and history.

(b) Application for Background Check. Each applicant for a background check shall submit the following:

(1) Information related to the applicant’s business, occupation and employment history as set forth in Cal. Bus. & Prof. Code § 4612(e).

(2) Other information as the department may reasonably require.

(3) Livescan fingerprint certificate.

(4) An application fee in the amount established by resolution of the city council.

(c) Background Clearance. The city will issue background clearance within 60 days if:

(1) The owner’s information is complete;

(2) The owner has not made a material false statement;

(3) The owner has not committed a violation of any provision of Cal. Health & Safety Code § 4603 or any law related to the operation of a business, including a massage establishment; and

(4) The background clearance does not indicate any information that is relevant to owning or operating a massage establishment. (Ord. 20-2015 § 1, 10-13-15.)

(a) Written Notice Required. The finance director, before revoking or suspending any operator permit, shall give the permittee at least 10 days’ written notice of the revocation or suspension. The notice must state the effective date of the suspension or revocation, the length of any suspension imposed, and the alleged grounds for the revocation or suspension. The notice must be served on the permittee in person or by certified mail at the most recent home or business address on file.

(b) Written Appeal. If a permittee wishes to contest a proposed suspension or revocation, he or she must request a hearing within 14 days after receiving notice of the intended revocation or suspension. The request must be served on the city clerk by mail or in person. If a permittee fails to timely or properly serve a hearing request, he or she waives the right to a hearing before suspension or revocation.

(c) Hearing. If a hearing request is timely and properly served, a hearing must be held before a hearing officer before suspension or revocation. A hearing officer designated by the city manager shall preside at the hearing. The hearing officer’s jurisdiction is limited to determining whether substantial evidence exists to provide grounds as specified in this chapter for suspension or revocation of the permit. If the hearing officer finds that grounds do not exist for revocation but do exist for suspension, the hearing officer must order the permit suspended. The hearing officer’s duties are to:

(1) Receive evidence regarding the proposed suspension or revocation; and

(2) Preserve the evidence whether or not it is admitted; and

(3) Record the hearing on audio tape and preserve the tape for the record; and

(4) Decide whether grounds exist for the suspension or revocation.

Both the permittee and the city have the right to appear and be represented by counsel, cross-examine witnesses, and present evidence and arguments whether good cause exists for suspension or revocation.

(d) Notice of Decision. Within 14 days following the hearing, the hearing officer must issue a written decision that states whether the permit is suspended, revoked, or that no grounds exist to either suspend or revoke the license or permit, the factual and legal basis for the decision, and a notice that the permittee may appeal any suspension or revocation as described in subsection (e) of this section. The decision of the hearing officer must be served on the permittee by certified U.S. mail. The hearing officer’s decision is effective on the date the decision is personally served on or mailed to the parties.

(e) Appeal. The hearing officer’s decision is subject to review under Cal. Code of Civ. Proc. § 1094.6. Any request for review must be filed within 90 days of service of the hearing officer’s decision. The city council hereby expressly makes Cal. Code of Civ. Proc. § 1094.6 applicable to all proceedings for review of decisions under this chapter. (Ord. 20-2015 § 1, 10-13-15.)

This chapter applies to all massage establishments that lawfully existed in the city and that held valid permits issued by the city before the effective date of this chapter. Preexisting massage establishment licenses/permits shall continue to be valid until their expiration. In order to renew a preexisting license or permit, the licensee or permittee must timely file a new application under this chapter and pay all applicable fees. (Ord. 20-2015 § 1, 10-13-15.)