Hesperia Municipal Code Ch. 5.20 Massage Facilities and Massage Therapists

Footnotes:

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Editor's note— Ord. No. 2019-10, § 3(Exh. A), adopted August 20, 2019, amended ch. 5.20 in its entirety to read as herein set out. Former ch. 5.20, §§ 5.20.010—5.20.090, pertained to massage facilities and massage technicians, and derived from Ord. 197; Ord. 250; Ord. 2004-17, § 3(part), 2004; and Ord. 2004-20, § 5(part), 2004; Ord. No. 2009-07, § 3(Exh. A), 11-3-09; Ord. No. 2017-10, § 3(Exh. A), 6-6-17.

A. No person shall provide massage in the City of Hesperia unless he or she holds a valid massage therapist license issued by the California Massage Therapy Council pursuant to Section 4600 et seq. of the Business and Professions Code. Persons who are independently contracted by a massage facility to provide massage shall also obtain a business license.

B. No person or entity shall operate a massage facility without first obtaining a massage facility business license hereunder.

C. This chapter shall not apply to the following classes of individuals, and no license, other than a business license, shall be required of such persons while engaged in the performance of the duties of their respective professions:

1. Physicians, surgeons, chiropractors, osteopaths, or physical therapists who are duly licensed to practice their respective professions in the state of California, and persons working at the place of, business of, or under the supervision of, a licensed physician, surgeon, chiropractor, osteopath or physical therapist.

2. Acupuncturists or acupressurists, who hold a valid license to practice their profession in the state of California.

3. Trainers of scholastic, amateur, and semi-professional or professional athletes or teams, while providing training services for the school or team.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. Every person operating a facility where massage services for compensation are provided shall obtain and maintain a valid city business license required by this chapter.

B. An owner or operator of a massage facility shall notify the city of any rename, management change, or transfer of more than five percent of the business to another person.

C. The city shall promptly reject as incomplete any application that does not meet all the requirements of this chapter, and shall notify the applicant in writing, by first class mail, postage prepaid, to the address supplied to the city by the applicant, of the deficiencies in the application.

D. No application for renewal of a massage facility license shall be accepted earlier than ninety (90) days prior to the expiration of an existing license.

E. The owner and/or operator of a massage facility shall be responsible for the conduct of all employees or independent contractors working on the premises of the business. This provision also applies to owners and operators who lease or sublease space to independent contractors or to separate massage businesses.

F. All massage facility licenses are nontransferable, both as to location and as to the person or entity holding a license.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. Any person desiring to obtain a permit to operate a massage facility shall file a complete application for a massage facility license with all required documentation under penalty of perjury.

B. All applications for a massage facility license shall include:

1. A nonrefundable fee, as adopted in the City Fee Schedule.

2. All documents, including a site plan and floor plan, demonstrating compliance with Section 5.20.070, massage facilities operational requirements.

3. The following information:

a. The full name, any current or past aliases, for each individual, partner, corporate officer, director, or stockholder of applicant;

b. A copy of the unexpired driver's license or state issued identification for each individual, partner, corporate officer, director, or stockholder of applicant.

c. A valid LiveScan clearance issued by the Department of Justice (DOJ) prepared within the last thirty (30) days for individual, partner, corporate officer, director, or stockholder of applicant.

1. A massage facility where the owner is the only person employed by that business and certified by the CAMTC is not required to undergo criminal background checks. A massage practitioner or massage therapist shall maintain on the premises at all times evidence of their certification for review by local municipal officials.

d. The street address where the licensed activities will be conducted.

e. Copies of CAMTC certifications for all employees or independent contractors who will be operating at the location, including if they are operating as separate business entities.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. The city shall revoke a license or permit issued to a massage facility or a massage practitioner if any of the following occur:

1. Violations of California Business and Professions Code Sections 4600 thru 4620, or violations of the provisions of this chapter, occur on the business premises. Violations shall be demonstrated by a preponderance of the evidence.

2. The massage facility applicant or permit holder has provided materially false information, including but not limited to any inaccurate statement, or misrepresentation, or omission, of a material fact made in the application or in any document or statement submitted in support thereof.

3. The applicant or permit holder has not met the requirements of this chapter and applicable laws.

4. The applicant or permit holder employs massage technicians who do not hold a valid certification from the CAMTC.

5. The applicant or permit holder has, within the ten years immediately preceding the date of the application, been convicted of any of the offenses set forth in this chapter or has, within the same time frame, been convicted of any offense in another state which, if committed, or attempted in this state, would have been punishable as one or more of the offenses enumerated in this title.

6. The applicant or permit holder is required to register under Section 290 of the Penal Code, or the equivalent statute under federal law or the law of another state,

7. The massage facility license or similar license or permit held by the applicant, permit holder, or any massage therapist who will work at the proposed business or location has been revoked or suspended for cause within the five years preceding the application,

8. The facilities and operations of the massage facility are not maintained in compliance with the provisions of this chapter at all times;

9. The license was issued in error.

10. An applicant has, within the preceding five years, been convicted of, or is under indictment or is currently awaiting trial for a crime involving or constituting any violation of the following (including lesser offenses, and equivalent offenses under federal law or the laws of other states):

11. Prostitution or solicitation of prostitution, (Penal Code 653.22);

12. Pandering or pimping, (Penal Code 266);

13. Obscenity as defined under California law;

14. Sale, distribution or display of harmful material to minors, (Penal Code 313.1);

15. Sexual assault, (Penal Code 243.4);

16. Running a house of prostitution;(Penal Code 315);

17. Any offense that requires registration as a Sex Offender (Penal Code 290); or

18. Child Pornography (Penal Code 311.11).

B. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.

C. Any location occupied by a massage facility, which has had its massage facility license revoked, shall be ineligible for a massage facility to occupy the location for a period of no less than three years.

D. Any applicant whose massage facility license has been revoked shall be ineligible to apply for a facility license for a period of no less than three years.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

No massage facility may be located within 3,000 feet of another massage establishment or within 2,000 feet of an elementary, secondary, or high school.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. Upon receipt of a complete application, the city shall refer the application to all appropriate city departments and county agencies to determine if all applicable requirements are met. The departments shall review the application and the structure shall be inspected. The departments may request additional information reasonably related to the licensing requirements of this chapter. The departments shall determine whether the massage facility and massage therapists comply with the applicable laws, including appropriate zoning, land use district designations, and CAMTC certification.

B. If the city, following investigation of the applicant and facility, determines that the applicant does not fulfill the requirements set forth in this chapter, the city shall deny the application in writing. The decision shall be delivered by certified U.S. mail with return receipt. The city's decision shall be effective irrespective of delivery or acceptance by the applicant. Within sixty (60) days following the denial of the application, if the applicant provides evidence to the city that the applicant or facility can be brought into compliance, the city shall consider the evidence presented and render a decision as to whether the facility or applicant complies and may continue the licensing process.

C. Any application may be denied for noncompliance with any of the requirements of this chapter, including the grounds upon which a license can be revoked. Following the denial of a massage facility license, no application for a massage facility license may be filed by the same applicant, at the same or substantially same location, for a period of no less than three years following the date of the denial. The applicant may appeal the denial, as set forth in Section 5.04.150.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

All massage facilities must comply with the operational provisions of this section. Noncompliance with these provisions may result in suspension or revocation of an existing massage facility license, or the denial of a new or renewed license.

A. A readable sign shall be posted at the main entrance identifying the establishment as a massage facility; provided, however, that all such signs shall otherwise comply with the sign requirements of the Municipal Code.

B. Minimum lighting shall be provided in accordance with the California Building Code. In addition, at least one unobstructed artificial light of not less than four hundred fifty (450) lumens shall be provided and used at all times in each enclosed room or booth while massage services are being rendered.

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

D. Instruments used for massage shall be disinfected prior to each use by a method approved by the San Bernardino County Department of Environmental Health Services. Where such instruments for massage are employed, adequate quantities of supplies for disinfection shall be available during all hours of operation.

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

F. Closed cabinets shall be utilized for the storage of clean towels and linen. After use, towels and linen shall be removed from the room or booth and stored in a clean container until laundered.

G. Dressing and toilet facilities shall be provided for patrons. If male and female patrons are to be treated simultaneously, then separate dressing and toilet facilities shall be provided.

H. All walls, ceilings, floors, steam, and vapor rooms, and all other physical facilities for the massage facility shall be kept in good repair, maintained in a clean and sanitary condition.

I. Clean and sanitary towels and linens shall be provided for patrons receiving massage services. No common use of towels or linens shall be permitted.

J. Standard or portable massage tables and chairs with durable, washable plastic or other waterproof material as covering shall be used for massage. Foam pads more than four inches thick or with a width of more than four feet may not be used. Beds, mattresses, and water beds may not be used in the administration of a massage.

K. The premises shall not operate as a school of massage, or use the same facilities of a school of massage.

L. A valid and current massage facility license shall be posted in a conspicuous place on the premises.

M. No massage facility shall place, publish, or distribute any advertising matter that depicts any portion of the human body that would reasonably suggest to prospective customers or clients that any service is available other than massage services.

N. No massage facility shall be open for business without at least one massage technician, massage practitioner, or massage therapist on the premises in possession of a valid, current CAMTC license.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

No massage facility shall be open between the hours of 10:00 p.m. and 7:00 a.m. Massage facilities shall not sell food or beverages, or serve food or beverages, to patrons on the premises of the massage facility; except from licensed vending machines.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. Every person performing massage services for compensation shall obtain and maintain a valid state massage certification from CAMTC.

B. A massage practitioner or massage therapist certified by the CAMTC is not subject to the criminal background required by this chapter.

C. A massage therapist shall file a copy of the certificate by the CAMTC with the city.

D. A massage therapist shall maintain their certification while performing massage in the city.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

A. No massage therapist or massage facility owner, manager, or employee shall engage in unprofessional conduct, as such is defined by Section 4609(a)(1) of the Business and Professions Code, or any of it successor provisions.

B. No massage therapist or massage facility owner, manager, or employee may expose his or her genitals, buttocks, or in the case of a female, her breast(s), to any individual or patron, or in the course of administering a massage.

C. No person shall enter, be or remain in any part of a massage facility while in the possession of, consuming, under the influence of, or using any alcoholic beverage or drugs except pursuant to a prescription for such drugs. The owner, operator, responsible managing employee, or therapist shall not permit any such person to enter or remain upon such premises.

D. No audio or video recording may be made of the performance of a massage.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

Any massage facility operated, conducted or maintained contrary to the provisions of this chapter is deemed a public nuisance and the city attorney or city prosecutor may, in addition to, or in lieu of prosecuting a criminal action, commence an action for the abatement and enjoinment thereof in any court of competent jurisdiction.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)

Officers of the police department, the San Bernardino County Environmental Health Department, the building and safety division, the planning division, code enforcement, and the fire department shall have the right to enter any massage facility during regular business hours to make reasonable inspection to ensure compliance with the provisions of this chapter.

(Ord. No. 2019-10, § 3(Exh. A), 8-20-19)