Hemet Municipal Code Art. VII Massage

Footnotes:

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Editor's note— Ord. No. 1761, § 2(Exh. A), adopted June 13, 2006, amended Art. VII in its entirety to read as herein set out. Former Art. VII, §§ 18-211—18-222, pertained to similar subject matter, and derived from Ord. No. 1568, adopted Aug. 26, 1997.

State Law reference— Licensing of massage businesses, Government Code § 51030 et seq.

The purpose of this chapter is to provide for the orderly regulation of massage businesses by establishing certain standards for the conduct of this type of business in order to protect the public health and welfare of citizens of and visitors to the city and to preserve the credibility and legitimacy of the profession. The provisions of this chapter regulating massage businesses are not intended to be exclusive and compliance with these regulations does not excuse noncompliance with any other applicable regulations pertaining to the operation of businesses adopted by the city, including, without limitation chapter 90 (zoning) of this Code.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:

City manager means the city manager of the City of Hemet or his or her designee.

Client means any person who receives a massage under such circumstances that it is reasonably expected that such person will pay money or give any other consideration for such massage.

Department means of the office of business licensing.

Employee includes every owner, operator, worker, independent contractor or person, whether paid or not, who renders or offers to perform personal services of any nature in the operation of or on behalf of a massage business.

Enforcement officer means any person authorized to enforce certain provisions of this Code.

Hearing officer means the person designated by the city to hear appeals of proposed license denials, suspensions or revocations.

License means the license to operate a massage business as required by this chapter.

Licensee means a person who is issued a massage business license under this chapter.

Massage means the scientific manipulation of the soft tissues, including, without limitation, any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating the external parts of the human body by any physical or mechanical means, with or without such supplementary aids as rubbing alcohol, liniment, antiseptic, oil, powder, cream, lotion, ointment or other similar preparations. Where applicable, this definition of "massage" may include alternative modalities and techniques including, but not limited to, Reiki, reflexology, applied kinesiology, hypnotherapy, polarity therapy, positional release (strain counter strain), Alexander Technique, Bowen Therapy, Feldenkrais Method, Heller Work, energy balancing, Trager Therapy, aromatherapy and essential oil therapy.

Massage business means any business where any person engages in, conducts, carries on or permits to be engaged in, conducted or carried on for consideration, massages, baths or health treatments involving massages or baths.

Massage technician means any person who administers to another person a massage in exchange for money or any other valuable consideration. Massage technicians include "massage therapists" and "massage practitioners" as those terms are defined in Business and Professions Code § 4601.

Operator means the person responsible for the day-to-day operations of the massage business and whose name appears on the license as required by this chapter. The operator may also be an owner.

Owner means any person having an ownership interest in a massage business.

Person means any individual, firm, association, partnership, corporation, joint venture or other form of entity or combination of individuals of whatever form or character.

Person who has engaged in disqualifying conduct means a person who:

(1) Within five years of the date of filing of an application for a license or, in the case of revocation or suspension proceedings, within five years of the date of notice of a revocation or suspension hearing, has pleaded guilty or no contest to, or been convicted in a court of competent jurisdiction of:

a. Any misdemeanor or felony offense which relates directly to the operation of a massage business, whether as a massage business owner or operator, or as a massage technician; or

b. Any felony the commission of which occurred on the premises of a massage business.

(2) Within five years of the date of the filing of an application for a license or, in the case of revocation or suspension proceedings, within five years of the date of notice of a revocation or suspension hearing, has had any massage business license, or a similar license or permit, issued by any state, county or city revoked.

(3) Within five years of the date of the filing of the application for a license, or in the case of revocation or suspension proceedings, within five years of the date of notice of a revocation or suspension hearing, has pleaded guilty or no contest to, or been convicted in a court of competent jurisdiction of:

a. Any violation of the California Penal Code §§ 266(h), 266(i), 314, 315, 316, 318, 647(a) or 647(b);

b. Conspiracy or attempt to commit any such offense; or

c. Any offense in a jurisdiction outside the state which is the equivalent of any of the aforementioned offenses and contains all of the same elements.

(4) Is required to register under California Penal Code § 290.

(5) Has been subjected to permanent injunction against the conducting or maintaining of a nuisance under the California Penal Code §§ 11225 through 11235 or any similar provisions of law in a jurisdiction outside the state.

Recognized school of massage means any school approved by the California Massage Therapy Council as meeting the minimum standards for training and curriculum in massage and related subjects, as defined in Business and Professions Code § 4601(a).

Responsible employee means any person designated by the operator to act as a representative or agent of the operator in conducting day-to-day operations. Such person must be familiar with the requirements of this chapter and be capable of communicating the provisions of this chapter to employees and clients of the business. A responsible employee may also be an owner or operator.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

No person may engage in, conduct or carry on within the city the operation of a massage business without a massage business license issued under this chapter. A massage business license shall be required of all massage businesses operating within the city, whether from a fixed location or mobile. A separate license must be obtained and a separate license fee paid for each separate fixed location operated by a person. No license issued under this chapter confers any vested right to any person or business for more than the one-year period of the license. If a license expires, or is suspended or revoked, or a licensee voluntarily relinquishes the license, all operations must cease at the business until a new license is obtained or the license is transferred in accordance with section 18-222 (license transferability).

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

Massage business licenses are not required of the following:

(1) Licensed hospitals and nursing homes.

(2) Recognized schools of massage.

(3) Doctor's offices, chiropractor's offices, physical therapy facilities, and other similar medical facilities in which massage is performed as a prescribed treatment for a physical ailment or medical condition on patients of the medical facility by a CMTC-certified massage technician or physician, chiropractor, physical therapist, or other professional who is licensed by the state to provide massage.

(4) Barbershops, beauty shops and nail salons provided that any massage services performed or provided are incidental or accessory and within the scope of any barber's or beautician's or manicurist's California license.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1817, § 1(Exh. A), 9-8-09; Ord. No. 1927, § 1(Exh. A), 4-25-17)

(a) Initial application. Any person who desires to own or operate a massage business may apply for a massage business license by submitting the requisite application form and information to the department along with a nonrefundable fee in the amount established by city council resolution.

(b) [Renewal.] A license to operate a massage business must be renewed annually. A licensee who wishes to renew the license must update the information required in the original license application and pay the nonrefundable renewal fee established by city council resolution. The city will renew the massage business license if the application satisfies all of the currently enacted criteria, unless, under section 18-217 [action on massage business license application], grounds for denial of the license exist.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

(a) An application for a massage business license must be submitted to the department utilizing the form provided by the city.

(b) The application must include the following information:

(1) The location, mailing address and all telephone numbers of the massage business.

(2) A site plan depicting the building or unit proposed for the massage business and a dimensional interior floor plan depicting how the massage business will comply with all applicable requirements of this chapter, if the proposed massage business will operate from a fixed location.

(3) A description of the type of ownership of the massage business (e.g., individual, partnership, corporation or other).

a. If the applicant is a corporation, the application must state the name of the corporation exactly as shown in its articles of incorporation, the date of incorporation and the names and residence addresses of each of the officers and directors of such corporation and of each stockholder owning more than ten percent of the stock of the corporation, and the address of the corporation itself, if different from the address of the massage business.

b. If the applicant is a partnership, the names and addresses of each of the partners including limited partners, and the address of the partnership itself, if different from the address of the massage business must be provided.

c. An applicant corporation or partnership must designate one of its officers or partners to act as the responsible officer and such designated person must sign all application forms required of an individual applicant. Such responsible officer must at all times meet the requirements set forth in this chapter, or the license will be suspended until a new responsible officer who meets all such requirements is designated.

(4) The following personal information:

a. Name and residence address of each applicant.

b. Any other residential addresses where the applicant resided within the past three years.

c. Proof that the applicant is at least 18 years of age.

d. The applicant's height, weight, color of eyes and hair, and sex.

e. Photo identification which may be either a driver's license, state issued identification card, or passport.

f. Upon submission of the initial license application: Three portrait photographs of the applicant at least two inches by two inches and a complete set of the applicant's fingerprints. If the applicant is a corporation, three portrait photographs at least two inches by two inches of all officers and managing agents of such corporation and a complete set of the same officers' and agents' fingerprints. If the applicant is a partnership, three portrait photographs at least two inches by two inches in size of each partner, including a limited partner in such partnership, and a complete set of each partner's or limited partner's fingerprints. All sets of fingerprints must be taken by the city's law enforcement agency.

g. Business, occupation, or employment of the applicant for the three years immediately preceding the date of application.

h. The massage or similar business license history of the applicant. Such information must include a statement as to whether or not such person, in operating a massage business under a permit or license, has had such permit or license revoked or suspended and the reasons for such revocation or suspension. Such information must also include the business, activity or occupation the license applicant engaged in subsequent to such action of revocation or suspension.

i. All criminal convictions other than misdemeanor traffic violations, including the dates of convictions, nature of the crimes and place convicted, and full statement of the disposition of all such actions.

(5) The hours of operation and a detailed description of all services to be provided by the massage business in accordance with section 18-218 (facilities and operations requirements). If the list of services required to be posted under this chapter will be in any language other than in English, such list must accompany the application for a license, and a translated copy of the list must also be submitted in English.

(6) Proof that the operator or each of the operator's designated responsible employees has a valid and current CPR and basic first aid certification from the American Heart Association, the American Red Cross, or a state or local government agency.

(7) The name and address of any massage business owned or operated by any applicant.

(8) A description of any other business to be operated on the same premises or on adjoining premises owned or controlled by the applicant.

(9) Proof of consent to the operation of a massage business by the property owner or the owner's authorized agent, if the massage business will be operated from a fixed location. Continuing proof of such consent is also required at the time of license renewal.

(10) A zoning clearance letter or other document from the community development department indicating that the applicant has received all necessary permits and approvals to operate a massage business at the subject location, if the massage business will be operated from a fixed location.

(11) Authorization for the city and its agents to seek information and conduct an investigation into the truth of the statements set forth in the application and the qualifications of the applicant for the license and to inspect the premises of the proposed massage business.

(12) Such other information as may reasonably be deemed necessary by the city manager.

(13) A dated statement signed by the applicant certifying under penalty of perjury that the information contained in the application is true and correct.

(c) Determination of completeness. The city manager must determine whether the application contains all the information and items required by this chapter. If the city manager determines that the application is not complete, the city manager will notify the applicant in writing within ten business days of the date of receipt of the application that the application is not complete and state the reasons for such determination, including any additional information necessary to render the application complete. The applicant will have 30 calendar days to submit additional information to render the application complete. Failure to do so within the 30-day period will render the application void. Within ten business days following the receipt of an amended application or supplemental information, the city manager must again determine whether the application is complete in accordance with the procedures set forth in this subsection. Evaluation and notification will occur as provided above until such time as the application is found to be complete (the "application date"). All notices required by this chapter will be deemed given upon the date any such notice is either deposited in the United States mail or the date upon which personal service of such notice is provided.

(d) Updating application information. The owner or operator of a massage business must notify the city manager of each change in any of the information required to be furnished by this section or contained in the application within 15 days after such change occurs.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

(a) The city manager must cause the application to be investigated, and within 60 days of the application date either issue the license or mail a written statement to the applicant setting forth the reasons for denial of the license.

(b) The city manager may deny a license to an applicant for any of the following reasons:

(1) The applicant has made one or more material misstatements in the application for a license;

(2) Any applicant is a person who has engaged in disqualifying conduct;

(3) The massage business, if permitted, would not comply with all applicable laws, including, but not limited to, all of the city's building, fire, zoning and health regulations;

(4) The applicant is lacking in the background and qualifications to conduct a bona fide massage business;

(5) The applicant has violated any provision of this chapter, or any similar ordinance, law, rule or regulation of any other city, county, or state which regulates the operation of massage business;

(6) The applicant is less than 18 years of age.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

All massage businesses must comply with the following facilities and operations requirements:

(1) Facilities requirements. Massage businesses that operate from a fixed location shall comply with all of the following requirements:

a. Massage businesses must comply with all applicable Municipal Code requirements.

b. A minimum of one toilet and wash basin must be provided in every massage business.

c. Cabinets or other covered space must be provided for the storage of clean linen. Appropriate receptacles must be provided for the storage of all soiled linen and paper towels.

d. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms and all other physical facilities including appliances and apparatuses of the business must be in good repair and maintained in a clean and sanitary condition.

e. Except for massage businesses operated by sole practitioners, all front, reception, hallway or front exterior doors (except back or rear exterior doors used for employee entrance to and exit from the massage business) must be kept unlocked during business hours. This requirement may be waived by the city manager or an enforcement officer where there are legitimate safety and security concerns. No massage may be given within any cubicle, room, booth or any area within a massage business which is fitted with a door capable of being locked, unless the only door is an exterior door.

f. A massage table, chair, or foam pad covered with durable, washable plastic or other waterproof material must be provided in each massage room and the massage must be performed on such massage table, chair, or foam pad.

g. A sign shall be posted in every massage establishment in a conspicuous place near the public entrance of the establishment, or in another conspicuous location in clear view of the public and employees, that conforms to the model anti-human trafficking notice promulgated by the Department of Justice pursuant to Civil Code § 52.6.

(2) Operational requirements. All massage businesses, whether fixed or mobile, shall comply with the following requirements:

a. Only massage technicians who are certified as a massage practitioner or a massage therapist by the state massage therapy council pursuant to the Business and Professions Code Chapter 10.5 of Division 2, may conduct massages. A massage business shall display the certificates for each massage technician performing massages within the business in a prominent location visible to clients, or for mobile massage businesses the massage technician shall have his or her certificate on his or her person when performing a massage.

b. The operator of each massage business must file a statement with the city manager designating the person or persons with the power to act as a responsible employee for the massage business.

c. Each service offered, the price thereof and the minimum length of time such service is performed must be posted in a conspicuous public location in each massage business conducted from a fixed location. Mobile massage businesses must ensure that each massage technician has the service and price list on their person when called out to perform a massage, and the massage technician shall provide the customer with the service and price list prior to performing a massage. No services may be performed and no sums may be charged for such services other than those included on the service and price list.

d. Except to the extent required, in writing, by a state licensed medical practitioner, no massage technician or employee may offer to or massage the genitals, pubic regions, or anal area of any client or the breasts of any female client, nor may any operator or responsible employee of a massage business allow or permit such solicitation or massage. No massage technician may, after the commencement of any service for any client, advise, suggest or otherwise indicate to such client that any additional service is available or ask or inquire of such client whether such client desires any additional massage service to be performed at that time, except with respect to services that are included on the service and price list.

e. No massage business may be kept open for business or otherwise provide massage services between the hours of 10:00 p.m. and 7:00 a.m. The owner must advise the city, in writing, at the time of the application for a license of the hours of operation.

f. No alcoholic beverages may be sold, served, furnished, kept or possessed by any massage business.

g. Massage technicians shall comply with the dress requirements of the Business and Professions Code § 4609. All employees other than massage technicians must be fully clothed at all times in clothing that is of non-transparent material and provides complete covering from mid-thigh to three inches below the collarbone.

h. Every operator must maintain a register of all employees. The register must contain the names of all employees, home address, age, birth date, gender, height, weight, color of hair, eyes, telephone number, social security number, date of employment and termination, if any, and duties of each employee. All such information must be maintained in the register for a period of two years following termination. Such register must be available for inspection by representatives of the city during regular business hours.

i. Every operator must keep a record of the dates and hours of each treatment or service, the name and address of the client, the name of the massage technician administering such service, a description of the treatment or service rendered and the amount charged for the treatment or services rendered. For mobile massage businesses, the register shall also include the street address where the massage was performed.

j. The operator and on duty responsible employee are responsible for the conduct of all employees. All persons found working in the massage business will be considered employees of the operator, including independent contractors and unpaid volunteers. Any act or omission of any employee on the premises constituting a violation of this chapter is deemed an act or omission of the licensee for the purpose of determining whether the license for the business should be revoked, suspended, denied or renewed.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

The city's building and safety division, code enforcement division, fire department, police department and health department may, from time to time, make an inspection of each massage business for the purpose of determining that the provisions of this chapter, state law or other applicable laws or regulations are met. Criminal investigations may be conducted as directed by the city's police department. During an inspection, the city's enforcement officers may verify the identity of all on-duty employees and other persons on the premises.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

Whenever any city enforcement officer makes an inspection of a massage business and finds that any provision of this chapter has been violated, the enforcement officer must give notice of such violation by means of an inspection report or other written notice. In any such notification, the enforcement officer must:

(1) Set forth the specific violation.

(2) Establish a specific and reasonable period of time for the correction of the violation.

(3) State that failure to comply with any notice issued in accordance with the provisions of this chapter may result in the issuance a notice of revocation or suspension of the license.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

No licensee may operate under any name or conduct business under any designation not specified in the license.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

No massage business license may be sold, transferred, or assigned by any licensee, or by operation of law, to any other person unless and until the transferee obtains an amendment to the license from the city manager stating that the transferee is now the licensee. Such an amendment may be obtained only if the transferee files an application with the city manager in accordance with section 18-216 (including payment of the applicable application fee), and the city manager determines in accordance with section 18-217 that the transferee would be entitled to the issuance of an original license. Without such amendment to the license, any other purported sale, transfer, or assignment or attempted sale, transfer, or assignment will constitute a voluntary surrender of the license and the license will be null and void. A massage business license held by a corporation or partnership is subject to the same rules of transferability set forth in this section.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

The licensee must cause the massage business license to be displayed in an open and conspicuous place on the premises of any massage business conducted from a fixed location.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

(a) The city has a zero tolerance policy toward violations of this chapter by licensees. The city manager may, in his or her sole discretion, pursue suspension or revocation of a license for any violation of this chapter, regardless of the nature of the violation or whether there is a prior history of violations.

(b) After an investigation, notice and an opportunity for a hearing, any license issued for a massage business may be revoked or suspended by the city manager where any of the following is found:

(1) The licensee or any employee of the licensee has violated any provision of this chapter including the facilities and operations requirements of section 18-218;

(2) The licensee is a person who has engaged in disqualifying conduct;

(3) The licensee has engaged in fraud, misrepresentation or made a false statement in connection with the operation of the massage business;

(4) The licensee has continued to operate the massage business after the license has been suspended;

(5) A person has administered or offered to administer a massage at the licensee's massage business who does not have a valid massage practitioner or massage therapist certification from the state massage therapy council;

(6) A person has engaged in disqualify conduct at the licensee's massage business.

(c) If the city manager is seeking revocation of the license, the city manager may suspend the massage business license to take effect immediately upon issuance of the notice of violation. The notice shall state the city is suspending the license until a final decision is made on the proposed revocation.

(d) The action indicated in the written notice will be final unless the licensee timely files a request for a hearing in accordance with section 18-225 (appeals).

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

Editor's note— Ord. No. 1927, § 1(Exh. A), adopted April 25, 2017, repealed §§ 18-224—18-227, 18-229, and 18-233, which all pertained to permitting and licensing requirements for massage technicians and all derived from Ord. No. 1761, § 2(Exh. A), adopted June 13, 2006; and Ord. No. 1817, § 2(Exh. B), adopted September 9, 2009. The repealing of §§ 18-224—18-227, and § 18-229 consequently renumbered § 18-228 as 18-224, and §§ 18-230—18-232 as 18-225—18-227. The historical notation remains with the affected sections.

(a) In the event the city manager denies the issuance or renewal of a license, or suspends or revokes a license, the aggrieved person may appeal such decision by filing with the city clerk a written notice of appeal within 15 days from the date notice of such denial, suspension or revocation is mailed to the applicant or licensee. To be deemed complete, the appeal must be in writing, must state the grounds for disagreement with the city manager's stated reasons for the denial, suspension or revocation of the license, and must be accompanied by the filing fee established by city council resolution.

(b) If such an appeal is timely filed, the city clerk must set a hearing before a city hearing officer on a date that is not less than 15 and not more than 60 days from the date that the request for hearing is filed in accordance with this section. The person requesting the hearing must be notified by regular mail of the date, time and place set for the hearing at least ten days prior to the date of the hearing and be given any reports that are provided to the hearing officer.

(c) The hearing must be conducted as follows:

(1) The hearing officer is authorized to take testimony and in the course of so doing, is authorized to administer oaths or affirmations pursuant to California Code of Civil Procedure § 2093(a).

(2) At the hearing, the hearing officer must consider all relevant evidence, including but not limited to applicable staff reports. The hearing officer must give any interested person the reasonable opportunity to be heard.

(3) The hearing officer may inspect the premises involved in the hearing prior to, during or after the hearing, provided that:

a. Notice of such inspection must be given to the parties before the inspection is made.

b. The parties are given an opportunity to be present during the inspection.

c. The hearing officer must state for the record during the hearing, or file a written statement after the hearing for inclusion in the hearing record, upon completion of the inspection, the material facts observed and each conclusion drawn from such facts.

(4) Each party has the right to rebut or explain the matters referenced by the hearing officer either during the hearing or by filing a written statement after the hearing for inclusion in the hearing record.

(5) Based upon the evidence presented to or discovered by the hearing officer, the officer must issue findings and determinations in writing within ten days of the conclusion of the hearing. Notice of the determination must be sent to the appellant by certified mail.

(6) In the event such denial, suspension or revocation is upheld by the hearing officer, the denial, suspension or revocation will be effective on the date the notice is mailed to the appellant, and that action will be final.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

Editor's note— See the note to § 18-224.

An applicant for a license under this chapter whose application for such license has been denied may not reapply for such license for a period of one year from the date such final notice of denial is deposited in the mail. However, a reapplication prior to the termination of one year may be made if accompanied by evidence that the ground or grounds for denial of the application no longer exists.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

Editor's note— See the note to § 18-224.

In the event that a license is suspended or revoked, the licensee must return such license to the city manager within five business days after notification of a final decision on such suspension or revocation.

(Ord. No. 1761, § 2(Exh. A), 6-13-06; Ord. No. 1927, § 1(Exh. A), 4-25-17)

Editor's note— See the note to § 18-224.

(a) Massage businesses that, at the time this article takes effect (May 25, 2017), hold a current and valid massage business license from the city shall obtain a massage business license pursuant to this article on or before the expiration date of the business's current license.

(b) Massage businesses that, at the time this article takes effect (May 25, 2017), do not hold a current and valid massage business license from the city shall apply for a massage business license pursuant to this article within 90 days of this article's effective date.

(Ord. No. 1927, § 1(Exh. A), 4-25-17)

Editor's note— See the note to § 18-224.